This paper provides an overview of certain provisions of Republic Act No. 9775 or the Anti-Child Pornography Act of 2009,

particularly those that affect the Internet, the Constitutional provisions related to the Right to Privacy, other pieces of

legislation as well as jurisprudence related to the Right to Privacy, and the questions arising from this law’s provisions.

The Anti-Child Pornography Act of 2009: An Impending Debate on Privacy in the Philippines

1.0 Child Pornography in the Philippines

• STATISTICS: there is scant data available on child pornography and these statistics do not present the actual extent of the problem.

Case/ Year 2000 2001 2002 2003

Victims of Pornography 9 4 7 13

Victims of Prostitution 186 224 245 247

Table 1. Reported Cases of Victims of Child Pornography as Compared to Victims. Survivors of Child Prostitution.

1.1 Paedophilia and Child Pornography in the Philippines

The need for Anti-Child Pornography legislation in the Philippines, particularly in relation to the Internet and the role of the Philippines as a producer of cybersex and child pornography in Cyberspace.

The situation obtaining prior to passage of the Act, both as regards Child Abuse (e.g. R.A. 7610) and regulation of the Internet (e.g. R.A. 8792).

1.2 Internet Regulatory Situation Prior to R.A. 9775

2.0 R.A. 9775 – Anti-Child Pornography Act of 2009

2.1 Prohibited Acts

Expressed goal of guaranteeing the fundamental rights of children from all forms of neglect, cruelty and other conditions prejudicial to their development; protecting them from all forms of exploitation including their use in pornographic performances and materials and their inducement or coercion to engage or be involved in pornography; and complying with international treaties concerning the rights of children to which the Philippines is a signatory or a State party.

1. To hire, employ, use, persuade, induce or coerce a child to perform in the creation or production of any form of child pornography;

2. To produce, direct, manufacture or create any form of child pornography;

3. To publish offer, transmit, sell, distribute, broadcast, advertise, promote, export or import any form of child pornography;

4. To knowingly, wilfully and intentionally provide a venue for the commission of the prohibited acts such as, but not limited to, dens, private rooms, cubicles, cinemas, houses or in establishments purporting to be a legitimate business;

2.1 Prohibited Acts (Cont.)

5. To engage in the luring and grooming of a child; 6. To engage in pandering of any form of child pornography; 7. To wilfully access any form of child pornography; 8. To conspire to commit any of the prohibited acts stated; and 9. To possess any form of child pornography and to possess them with

intent to sell, distribute, publish, or broadcast, provided that, possession of three (3) or more articles of child pornography of the same form shall be prima facie evidence of the intent to sell, distribute, publish or broad cast.

In addition, the Act also declares it unlawful: 1. For film directors, theatres and telecommunication companies, by

themselves or in cooperation with other entities, to distribute any form of child pornography; and

2. For a parent, legal guardian or person having custody or control of a child to knowingly permit the child to engage, participate or assist in any form of child pornography.

2.2 Duties of Internet Service Providers (ISPs)

2.2.1 Monitoring (Mandatory Reporting)

All Internet Service Providers (ISPs) shall notify the Philippine National Police (PNP) or the National Bureau of Investigation (NBI) within seven (7) days from obtaining facts and circumstances that any form of child pornography is being committed using its server or facility. Nothing in this section may be construed to require an ISP to engage in the monitoring of any user, subscriber or customer or the content of any communication of such person …

- ISPs now have broad, discretionary, and warrant-less surveillance powers - No limits on ISP’s use of monitoring and information for other purposes: e.g. commercial, marketing or profiling

- Violates principle of ISPs as public utilities

2.2 Duties of ISPs (cont.)

2.2.2 Mandatory Data Retention

Furthermore, an ISP shall preserve such evidence for purposes of investigation and prosecution by relevant authorities `` …

- No specifics nor limits on the information that ISPs may collect. Assume any and all.

- No safeguards nor time limits on storage of subscriber data or information. Forever?

- No safeguards against commercial re-purposing or trading of subscriber data.

An ISP shall, upon the request of proper authorities, furnish particulars of users who gained or attempted to gain access to an internet address that contains any form of child pornography …

- Personal information available upon request,

- No warrant, court order or any judicial review required.

2.2.3 Mandatory Filtering

2.2 Duties of ISPs (cont.)

All ISPs shall install available technology, program or software to ensure that access to or transmittal of any form of child pornography will be blocked or filtered.

- Legitimizes filtering and prior censorship of Internet content

- No safeguards to limit discretionary filtering powers

- Overly broad and vague, may be misused by ISPs for anti-competitive practices

- Reliance on technological “magic bullets” that rarely work as advertised

2.2.4 Safeguards of Civil Liberties and Consumer Rights

- ISPs are provided immunity from civil suit --

Provided that, no ISP shall be held civilly liable for damages on account of any notice given in good faith in compliance with this section.

- Overly broad discretionary powers are vested in an “Anti-Child Pornography Council”

2.3 Duties of Internet Content Host a person who hosts or who proposes to host Internet content in the Philippines.

• Internet content hosts are prohibited from hosting any form of child pornography on its address;

• to report within seven (7) days the presence of any form of child pornography, as well as the particulars of the person maintaining, hosting, distributing or in any manner contributing to child pornography, to the proper authorities; and

• to preserve such evidence for purposes of investigation and prosecution by relevant authorities.

In addition, an Internet content host, upon the request of proper authorities, is required to furnish the particulars of users who gained or attempted to gain access to an internet address that contains any form of child pornography.

2.5 Surfacing Tensions

2.5.1 Defining “pornography”

2.5.2 Vesting powers in an “overseer”

• Who decides what is “pornographic”?

• Quis custodiet ipsos custodes?

- Freedom of Expression issues - Legislating Morality – modes of controlling sexual roles and identities

• Mission creep (e.g. application to National Security)?

• Emerging problematic legal concepts (e.g. intermediary liability)

• Surveillance applications in Mobile Telephony

2.4 Comparison to Model Legislation

• Absence of Blocking Provision in ICME framework

• Global norm is voluntary filtering, if any

2.4 Surfacing Tensions (cont.)

2.5.4 Problems with new technologies – exposing socio-technological gaps

2.5.3 Reliance on technological solutions

• Technological solutions (alone) rarely work

• Vests power in (commercial) vendors of technology

• Locks people into proprietary technologies

• Vendor-capture and graft

• Anonymity on the Internet

• Privacy and the handling of Personally Identifiable Information

3.0 Privacy in the Philippines

3.1 Habeas Data and the Common Right to Privacy

3.2 Constitutional Provisions (Sections 2 and 3-1)

3.3 Civil Code (Articles 26 and 32-1)

3.4 Tañada Anti-Wiretapping Act of 1965 (R.A. 4200)

3.5 E-Commerce Act (R.A. 8792) on ISPs

3.6 Anti-Photo and Video Voyeurism Act of 2009 (R.A. 9995)

3.7 Senate Bill No. 2796: Cybercrime Prevention Act of 2012

Strands of Privacy and Standards for Intrusion

• Locational or situational privacy • Informational privacy • Decisional privacy

the standard for a valid intrusion to privacy is either a valid warrant or lawful order by a court or a law prescribing such intrusion based on public safety or public order. • Morfe vs. Mutuc ( • Ople vs. Torres (Supreme Court nullified A.O. No. 308

-National ID system)

4.0 Existing Legislations 4.1 Anti-Wiretapping law (1965) 4.2 Electronic Commerce Act (2000) 4.3 Anti-Photo and Video Voyeurism Act (2009) 4.4 Data Privacy Act (2012) 4.5 Cyber Crime Prevention Act (2012)

5.0 Contentious Legal Issues 5.1 Efficacy of Technical Means of Cyber-control 5.2 Implementation of Reporting, Monitoring and

Blocking 5.3 Government Attitudes (Feature Creep and Law Enforcement) 5.4 Commercial Use of Internet Monitoring and Filtering 5.5 Preservation of Evidence 5.6 Furnishing of Particulars of Users 5.7 Blocking, Filtering and Removal

Other Questions: • Technical Issues

• Efficacy of Filtering • Public Websites versus Private Exchanges • Filtering as a Palliative • Commercial Interests of ISPs

• R.A. 9775’s Implementing Rules and Regulations

6.0 Summary and Recommendations

Passage of a (newer) Anti-Cybercrime law with statutory/ judicial safeguards of civil liberties, specifically to expand upon and supersede the relevant sections in the Anti-Child Porn Act.

Amendments and additions to the Data Privacy Bill

that would restrict re-purposing of data. Amendments to the Anti-Child Porn IRRs to provide

legal protections, delimit the commercial use of monitoring and filtering capabilities, include other stakeholders.

Salamat Po !!!

• Winthrop Yu (ISOC-PH) w.yu@gmx.net

• Gilbert Lumantao (DAP) lumantao@gmail.com

• Charlyn Justimbaste