Sneaking surveillance and filtering could easily happen

The La Salle researchers praise Republic Act 9775 for its intentions.  But it identifies areas where “sneaking surveillance and filtering” could happen against the moral aims of the law.

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The Anti-Child Pornography Law is a landmark legislation which seeks to criminalize the following:  the production of Child Pornography, including of computer graphics, cell phones or other ICTs; the publication, transmission, selling, distribution, broadcasting, exporting, and importing of Child Pornography; and the possession or access to any Child Pornography with or without the intent to publish.

Categorically, the law provides major responsibilities to Internet Service Providers (ISPs) to conduct filtering of websites that may be subject to Child Pornography. Section 9 of the law states: “All Internet service providers (ISPs) shall notify the Philippine National Police (PNP) or 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 . . . furthermore, an ISP shall preserve such evidence for purposes of investigation and prosecution by relevant authorities . . .”

ISPs tapped

This facet of the law taps ISPs to provide information on suspected users and producers of child pornography sites. The ISPs become the basic evidence-gathering body as they share such information with law enforcers hence the need for capacity and resources as Section 9 continues:  “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 . . . An ISP who shall violate this provision shall be subject to the penalty provided under Section 15 of this Act.”

The same section of the law says that the National Telecommunications Commission (NTC) shall promulgate the necessary rules and regulations for the implementation of this provision more specifically the installation of the filtering software.

Section 3 of the law defines the nature of ISPs and Internet address to be covered by the law: “Internet service provider (ISP) refers to a person or entity that supplies or proposes to supply, and Internet carriage service to the public… Internet address refers to a website, bulletin board service, Internet chat room or news group or any other Internet or shared network protocol address . . . ”

Civil society organizations, which promote communication and privacy rights, argue that until now, ISPs and telecommunications companies do not monitor the contents of online activity. Mr. Wynthrop Yu of the Philippine Internet Commerce Society (PICS) expressed that ISPs can only inspect Internet packet headers to identify routing information. The ISPs are utilities and do not monitor user online activities. Furthermore, ISPs avoid inspecting content as this may be construed as wire-tapping or may require a warrant.

With this provision, ISPs are now obliged to become monitoring and surveillance arms of the government: “All ISP shall, upon the request of proper authorities, furnish the particulars of users who gained or attempted to gain access to an internet address which contains any form of child pornography…”
The implementation of the law can be a precursor to other filtering, surveillance and censorship. In a Round table discussion on ICT and Violence Against Women, it was observed that, in the context of R.A. 9775, an individual who is “allegedly” possessing Child Pornography materials online can be subjected to surveillance. ISPs will have to “gather evidence” by getting information on that individual’s personal emails, social networking accounts, and even computer files. There are no guarantees that ISPs and law enforcers will “only” look for child pornographic materials. ISPs will have the authority to conduct filtering and blocking. ISPs will have the sole power to choose which websites to block or filter. Privacy experts also pinpoint that the provisions of the law can lead to mission creep. The role of ISP in blocking strategies and information gathering and sharing with government are very intrusive into Internet communication. The more content-based filtering mechanisms require investigation into the content of the material being exchanged between users.

While Section 9 expresses that ISPs will not be engaged in monitoring, it protects ISPs from prosecution of potential violations: “Nothing in this section may construed to require an ISP to engage in the monitoring of any user, subscriber or customer, or the content of any communication of any such person, 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 . . .”

There is a question why there is a need to grant immunity from civil suit to those who are complying with a law. Some view the bill as an intended loophole to shield large commercial interests. Considering the weak justice system in the country, it will be difficult for any subscriber or consumer to file law suits against big telecommunications companies and ISPs who have access to legal resources.

Mission creep

In a roundtable discussion on Internet Governance, Social Controls and Law Enforcement organized by the La Salle Institute of Governance, Wynthrop Yu of the Philippine Internet Commerce Society discussed a hypothetical scenario how an individual’s basic right to privacy can be violated using the pretext of R.A. 9775:

1. ISPs and telecommunications will have a “blacklist” of child pornography sites and report those accessing them to the government.

2. Government then discovers “Juan P. ListRep’s” name on that list. It does not matter that “Juan P. ListRep” visited that site for something else and did not know that there was pornographic materials in the website.

3. Government will now have justification and instructs the ISP to monitor all of “Juan P. Listrep’s” online activities (e.g. e-mail, forum and site visits, etc.) and report everything, including contacts. –Manila Times