Disclaimer: This is a work of a law student. This blog is created in compliance with the requirements set forth in the subject Technology and the Law. It shall not be used in any manner other than for classroom purposes only.
"Chinese' hackers deface Philippine website - Hackers claiming to come from China defaced the website of the Philippines' top university on Friday to assert their country's claim over the hotly disputed South China Sea, the government said. The foreign department, which has been leading the government's response over its increasingly tense rift with China, immediately called for an investigation into the attack on the University of the Philippines website" (http://ph.news.yahoo.com/chinese-hackers-deface-philippine-website-132340721.html)
Over the past few weeks, tension between the Philippines and China grew larger since both countries claim sovereignty over the Scarborough Shoal. Last week, the entire nation was shocked over the news that some hackers allegedly from China defaced the website of one of the Philippines' top university. The reason? They want to tell the Filipinos that China owns the said territory and that the Philippines doesn't have any right over it. But the main issue here is not who really owns the Scarborough Shoal, it is about protecting the Philippine websites that is vital to national interests.
Over the past few weeks, tension between the Philippines and China grew larger since both countries claim sovereignty over the Scarborough Shoal. Last week, the entire nation was shocked over the news that some hackers allegedly from China defaced the website of one of the Philippines' top university. The reason? They want to tell the Filipinos that China owns the said territory and that the Philippines doesn't have any right over it. But the main issue here is not who really owns the Scarborough Shoal, it is about protecting the Philippine websites that is vital to national interests.
On June 14, 2000, Republic Act 8792, otherwise known as the "Electronic Commerce Act", was passed. It is designed to promote the use of computer technology in nation building and likewise, to penalize those who hack or crack a computer system among others. In the advent of technology today, one can easily access information that is not available to the public. These so called "hackers" have the ability to access, manipulate, scrutinized or modify information that are confidential in nature. Under the said law, websites from all over the Philippines are given protection from hackers by providing corresponding penalties. As provided by Section 33 (a) of RA 8792, hacking (or cracking) is defined as the "... unauthorized access into or interference in a computer 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 the introduction of computer viruses and the like, resulting in the corruption, destruction, alteration, theft or loss of a electronic data messages or electronic documents...". The law does not classify nor limit the term "hacker" to a Filipino citizen. Being said, foreign hackers may be held liable under the said law. From this definition, it is clear that these men allegedly from China violated the said special law. The said provision is penal in nature as it provides a fine minimum of P100,000.00 and a maximum commensurate to the damage incurred and a mandatory imprisonment of 6 months to 3 years. But if one may ask, is the said law enough to make these hackers liable in defacing websites from the Philippines, especially if these hackers are outside of the country's territory?
To answer this question, we need to examine first if we have the capabilities to prosecute these foreign hackers in our own tribunals. Sadly, the author of this blog has not yet encountered nor aware of any jurisprudence that seeks to prosecute foreign hackers. The question of jurisdiction comes now into play that hunts our Philippine Courts. We may be left with no alternative but to turn a blind eye over these matters for indeed, it is jurisdiction that is the starting point if we are to make these hackers liable. Jurisdiction is the power and authority of the courts to hear and decide cases. It is conferred by law and without it, the power of the courts to enforce justice would be futile. Acquiring jurisdiction over the person of a foreign citizen seems to be impossible but the author believes otherwise.
Thus, China, by being a party to these treaties, is bound to enforce the extradition treaty, as well as to cooperate, gather and exchange information under the provisions of Treaty on Mutual Judicial Assistance on Criminal Matters in enforcing the Philippine laws against the former's citizens under the well settled principle of pacta sunt servanda which requires that treaties must be observed in good faith. Therefore, despite violating the Philippine law (PD 8792) outside the territorial jurisdiction of the country, these hackers allegedly coming from China can still be made liable for violation of Section 33 (a) of RA 8792 because of the existence of the Extradition Treaty and Treaty on Mutual Judicial Assistance on Criminal Matters between the Philippines and China.
The author knows that it's quite impossible for China to surrender its citizens for allegedly violating Philippine law amidst the existence of these treaties. The author is also aware that China may refuse the extradition of its nationals since this right has been reserved by both parties as provided by Article 3 (1) of the Extradition Treaty. But since the question is how to make these Chinese hackers liable, the author provides the legal bases of prosecuting them. The author only claims that making them liable is possible but not the feasibility of prosecuting them.
The Philippines and the People's Republic of China have an existing Extradition Treaty. (http://ww.oecd.org/dataoecd/50/37/39379217.pdf) P.D. 1069 Sec. 2(a) defines extradition as the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government. The Extradition Treaty between the Philippines and China desires to provide for more effective cooperation between the Parties in the representation of crime on the basis of mutual respect for sovereignty and equality and of mutual benefit. Both parties are obliged to extradite to each other, subject to the provisions laid down in the Treaty,any person who is found in the territory of the requested party and who is wanted by the requesting party for prosecution or for the imposition or enforcement of a sentence in respect of an offense described in Article 2 of this Treaty. http://www.oecd.org/dataoecd/50/37/39379217.pdf)
Likewise, both parties entered a treaty known as "Mutual Judicial Assistance on Criminal Matters" in 2000 (www.phil-chinabc.org/overview.htm). A mutual legal assistance treaty can be defined as an agreement concluded between two countries, in order to exchange and gather information, which will help these countries enforce criminal or public laws. (www.expatintelligence.com/mutual-legal-assistance-treaties.shtml)
Likewise, both parties entered a treaty known as "Mutual Judicial Assistance on Criminal Matters" in 2000 (www.phil-chinabc.org/overview.htm). A mutual legal assistance treaty can be defined as an agreement concluded between two countries, in order to exchange and gather information, which will help these countries enforce criminal or public laws. (www.expatintelligence.com/mutual-legal-assistance-treaties.shtml)
Thus, China, by being a party to these treaties, is bound to enforce the extradition treaty, as well as to cooperate, gather and exchange information under the provisions of Treaty on Mutual Judicial Assistance on Criminal Matters in enforcing the Philippine laws against the former's citizens under the well settled principle of pacta sunt servanda which requires that treaties must be observed in good faith. Therefore, despite violating the Philippine law (PD 8792) outside the territorial jurisdiction of the country, these hackers allegedly coming from China can still be made liable for violation of Section 33 (a) of RA 8792 because of the existence of the Extradition Treaty and Treaty on Mutual Judicial Assistance on Criminal Matters between the Philippines and China.
The author knows that it's quite impossible for China to surrender its citizens for allegedly violating Philippine law amidst the existence of these treaties. The author is also aware that China may refuse the extradition of its nationals since this right has been reserved by both parties as provided by Article 3 (1) of the Extradition Treaty. But since the question is how to make these Chinese hackers liable, the author provides the legal bases of prosecuting them. The author only claims that making them liable is possible but not the feasibility of prosecuting them.
R.A. 8792 may be used as a defense against foreign hackers but the author believes that it is not enough since it is the only law that the Philippines have to prosecute hackers. This law is also criticized for being vague. As stated by Ryan Flores, team leader of TrendLabs Philippines Incident Response, "Something has to be done about the breadth of the law as well as its vagueness. we need to pinpoint more details on what a cyber crime is and put a little more technicality in the law. If it's too vague, the hacker can just use that vagueness to his advantage. We need the law to be more technical."(http://beta.abs-cbnnews.com/special-report/06/06/08/cyber-crime-law-urgent-stalled-congress). Clearly, the country is still not yet equipped with sufficient laws to protect the country's websites from these "invaders". Fortunately, the Philippine Senate has approved Senate Bill 2796 or the "Cybercrime Prevention Act of 2012" which seeks to establish safeguards in using the Internet and penalizes cyber sex, child pornography on the web, spamming and other cyber crimes such as hacking, unauthorized input or deletion of data, fraud and cyber squatting. Likewise, the proposed measure penalizes libel committed on the Internet (http://ph.news.yahoo.com/senate-oks-anti-cybercrime-bill-034415659.html).
Websites are created as a source of information that is available to the public upon access. For companies it is a good choice of advertising their services and products. Schools relies on their webpage to promote thier capabilities to give education. Agencies of the government turn to create thier website to enhance public service. It is a tool that is designed to give general information to the public. It becomes vital to the interest of the state in promoting general welfare through information and technology. Philippine websites has become the "face" of the nation to the entire world. To allow hackers to defaced it would be a "slap on the face" to the entire nation. The citizens of this country cannot risk anymore the embarassment and humiliation that these hackers brought to the Philippines. Now is the time to bring the law against them and face justice!
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