" Running after Cyber Criminals"


Disclaimer:  The views and opinions expressed herein are the author's own and purely intended for academic discussion only and in compliance with the requirements of the requirements of the course in Technology and the Law.  Reproduction or use as reference material of the whole or any part of the contents herein are unauthorized and strictly prohibited.  The author will not be liable for said unauthorized reproduction or use as reference.

Recently in the news it was reported that the University of the Philippines website was defaced by alleged Chinese nationals.  Is there a Philippine law which punishes this act of defacing a website?  If so, can this law apply to foreigners, in this case, Chinese citizens?  How do we make foreigners liable for the act of defacing Philippine websites?

The Chinese Government has been aggressively pursuing its claim on the Scarborough shoal.  At the height of the issue on the Philippine claim against the Chinese claim, the University of the Philippines website was defaced by alleged Chinese nationals as an act of sympathy and support for their government.

According to my professor in Technology and the Law, there are two kinds of hackers, a "white hat hacker" and a "black hat hacker."  Based on this classification, hacking may be used in a good or bad way.  Hacking or cracking as defined under Section 48 of the E-Commerce Law 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 communication system, including the introduction of computer viruses and the like, resulting in the corruption, destruction, alteration, theft or loss of electronic data message or electronic document.."

Under the said provision, hacking or cracking is punishable by a minimum fine of one hundred thousand pesos (P100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years.

This year 2012, the Senate approved on third reading Senate Bill No. 2796 entitled "Cybercrime Prevention Act of 2012".  When passed into law, it will clearly define cyber crimes and will impose stiffer sanctions.  This law will address the acts of defacing a website and hacking.

There is a question however of applicability of Philippine penal laws such as the Cybercrime Prevention Act to foreign nationals, in this case, Chinese nationals, considering that as a general rule, criminal laws apply only within the territorial jurisdiction of the state where the law was passed.  A state only has the power to punish acts within its territorial jurisdiction.

SB 2796 has provisions for mutual assistance and extradition.  It makes applicable some provisions of the Budapest Convention on Cybercrime which was created to create a common criminal policy on computer and internet crimes and to build international cooperation among countries.

As for extradition, although we have an existing RP-China Extradition Treaty, the questions are:  whether defacing a website is also punishable under Chinese laws and if China will surrender its nationals to the Philippines .  China surrendering its nationals to the Philippines is highly doubtful considering that the act was done in support of China's claim of territory against the Philippines.  This may even be interpreted as an act of nationalism on the part of the Chinese nationals.  Even if there is a law which can make these Chinese nationals liable, that law may not be enforced, and the Chinese nationals will never be punished for their acts.  

We have taken important steps in fighting cybercrime.  But on the question of whether this can be enforced in this particular situation of the hacking of our UP website allegedly by Chinese nationals, enforceability is another question..