Republic of the Philippines SUPREME COURT OF THE PHILIPPINES Manila

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET AL. Petitioners,

SC-G.R. SP. NO. (Petition for Prohibition, Mandamus and Certiorari with Prayer for the Issuance of a Temporary Restraining Order)

- versus PAQUITO N. OCHOA JR., in his capacity as Executive Secretary and alter-ego of President Benigno Simeon Aquino III, LEILA DE LIMA in his capacity as Secretary of the Justice, Respondents. x--------------------------------------------x

PETITION FOR PROHIBITION AND MANDAMUS WITH PRAYER FOR THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER
Petitioners, by counsel, respectfully state that:

NATURE OF THE PETITION

1.

This is a petition for the issuance of the writs of prohibition and

mandamus against the Executive Secretary and the Secretary of Justice and for the exercise of judicial review to assail the constitutionality and enjoin the implementation of Republic Act No. 10175 or the Cybercrime Prevention Act of 2012.

THE PARTIES AND THEIR STANDING

2.

The Petitioners are Filipino citizens, of legal age, residents of the

Philippines, and are named below:

2.1.

Hon.

Raymond

V.

Palatino,

Representative

of

Kabataan Partylist, House of Representatives, suing in his capacity as a: 1) legislator who raised at the first instance the unconstitutionality of Republic Act No. 10175, at the House of Representatives, and 2) citizen, in vindication of public and constitutional rights, as he is a youth and political blogger, internet user, and social media account holder whose constitutional rights to freedom of expression, speech, and due process, among other rights, will be violated with the enactment and implementation of R.A. No. 10175, and whose office address is at the Batasang Pambansa;

2.2.

Hon. Antonio Tinio, Representative of ACT Teachers

Partylist, House of Representatives, suing in his capacity as a: 1) legislator who raised at the first instance the unconstitutionality of Republic Act No. 10175, at the House of Representatives, and 2) citizen, in vindication of public and constitutional rights, as he is a youth and political blogger, internet user, and social media account holder whose constitutional rights to freedom of expression, speech, and due process, among other rights, will be violated with the enactment and implementation of R.A. No. 10175, and whose office address is at the Batasang Pambansa;

2.3.

Vencer Mari Crisostomo of Anakbayan, suing in his

capacity as a citizen, in vindication of public and constitutional rights, as he is a youth and political blogger, internet user, and social media account holder whose constitutional rights to freedom of expression, speech, and due process, among other rights, will be violated with the enactment and implementation of R.A. No.

10175, and whose office address is 89 K-7 St., Kamias, Quezon City;

2.4.

Isabelle Therese M. Baguisi of the National Union of

Students of the Philippines, suing in her capacity as a citizen, in vindication of public and constitutional rights, as she is a youth and political blogger, internet user, and social media account holder whose constitutional rights to freedom of expression, speech, and due process, among other rights, will be violated with the enactment and implementation of R.A. No. 10175, and whose office address is 89 K-7 St., Kamias, Quezon City;

2.5.

Michael Philip G. Beltran of Karatula, suing in his

capacity as a citizen, in vindication of public and constitutional rights, as he is a youth and political blogger, internet user, and social media account holder whose constitutional rights to freedom of expression, speech, and due process, among other rights, will be violated with the enactment and implementation of R.A. No. 10175, and whose office address is 89 K-7 St., Kamias, Quezon City;

2.6.

Ma. Katherine Elona of the Philippine Collegian, suing

in her capacity as a citizen, in vindication of public and constitutional rights, as she is a journalist, youth and political blogger, internet user, and social media account holder whose constitutional rights to freedom of expression, speech, and due process, among other rights such as press freedom, will be violated with the enactment and implementation of R.A. No. 10175, and whose office address is Vinzons Hall, UP Diliman;

2.7.

Dean Rolando Tolentino of the UP College of Mass

Communications, suing in his capacity as a citizen, in vindication of public and constitutional rights, as he is a journalist, professor, political blogger, internet user, and social media account holder whose constitutional rights to freedom of expression, speech, and due process, among other rights such as press freedom and academic freedom, will be violated with the enactment and

implementation of R.A. No. 10175, and whose office address is UP College of Mass Communications, Diliman, Quezon City;

2.8.

Prof. Carl Marc Ramota of the UP Manila Department

of Social Sciences, suing in his capacity as a citizen, in vindication of public and constitutional rights, as he is a journalist, professor, political blogger, internet user, and social media account holder whose constitutional rights to freedom of expression, speech, and due process, among other rights such as press freedom and academic freedom, will be violated with the enactment and implementation of R.A. No. 10175, and whose office address is UP Manila College of Arts and Science, P. Faura, Manila;

2.9.

Victor Villanueva, suing in his capacity as a citizen, in

vindication of public and constitutional rights, as he is a political blogger, internet user, and social media account holder whose constitutional rights to freedom of expression, speech, and due process, among other rights such as press freedom and academic freedom, will be violated with the enactment and implementation of R.A. No. 10175, and whose office address is 89 K-7 St., Kamias, Quezon City;

2.10.

Katrina Stuart Santiago, suing in her capacity as a

citizen, in vindication of public and constitutional rights, as she is a political blogger, internet user, and social media account holder whose constitutional rights to freedom of expression, speech, and due process, among other rights such as press freedom and academic freedom, will be violated with the enactment and implementation of R.A. No. 10175, and whose office address is 89 K-7 St., Kamias, Quezon City;

2.11.

Cleve Kevin Arguelles, UP Student Regent, suing in

his capacity as a citizen, in vindication of public and constitutional rights, as he is a political blogger, internet user, and social media account holder whose constitutional rights to freedom of expression, speech, and due process, among other rights such as press freedom and academic freedom, will be violated with the

enactment and implementation of R.A. No. 10175, and whose office address is Vinzons Hall, UP Diliman;;

2.12.

Ofelia Beltran Balleta of the Crispin Beltran Research

Center, suing in her capacity as a citizen, in vindication of public and constitutional rights, as she is a journalist, political blogger, internet user, and social media account holder whose

constitutional rights to freedom of expression, speech, and due process, among other rights, will be violated with the enactment and implementation of R.A. No. 10175, and whose office address is 89 K-7 St., Kamias, Quezon City;

2.13.

Allen Enriquez, artist, suing in his capacity as a

citizen, in vindication of public and constitutional rights, as he is a political blogger, internet user, and social media account holder whose constitutional rights to freedom of expression, speech, and due process, among other rights such as press freedom and academic freedom, will be violated with the enactment and implementation of R.A. No. 10175, and whose office address is 89 K-7 St., Kamias, Quezon City;

2.14.

Ericson Cabrera, artist, suing in his capacity as a

citizen, in vindication of public and constitutional rights, as he is a political blogger, internet user, and social media account holder whose constitutional rights to freedom of expression, speech, and due process, among other rights such as press freedom and academic freedom, will be violated with the enactment and implementation of R.A. No. 10175, and whose office address is 89 K-7 St., Kamias, Quezon City;

2.15.

Allan Ace W. Aclan of the Burgos Media Center, suing

in his capacity as a citizen, in vindication of public and constitutional rights, as he is a journalist, political blogger, internet user, and social media account holder whose constitutional rights to freedom of expression, speech, and due process, among other rights such as press freedom, will be violated with the enactment

and implementation of R.A. No. 10175, and whose office address is 30 Acacia St., Cembo, Makati City;

2.16.

Hannah Vina Travina of the Burgos Media Center,

suing in her capacity as a citizen, in vindication of public and constitutional rights, as she is a journalist, political blogger, internet user, and social media account holder whose

constitutional rights to freedom of expression, speech, and due process, among other rights, will be violated with the enactment and implementation of R.A. No. 10175, and whose office address is 30 Acacia St., Cembo, Makati City;

2.17.

Flor Chantal C. Eco of Tudla Media Productions, suing

in her capacity as a citizen, in vindication of public and constitutional rights, as she is a journalist, political blogger, internet user, and social media account holder whose

constitutional rights to freedom of expression, speech, and due process, among other rights, will be violated with the enactment and implementation of R.A. No. 10175, and whose office address is 42A Driod St., Bgy. Kaunlaran, Quezon City;

2.18.

Maximo B. Santiago of Tudla Media Productions,

suing in his capacity as a citizen, in vindication of public and constitutional rights, as he is a journalist, political blogger, internet user, and social media account holder whose constitutional rights to freedom of expression, speech, and due process, among other rights, will be violated with the enactment and implementation of R.A. No. 10175, and whose office address is 42A Driod St., Bgy. Kaunlaran, Quezon City;

2.19.

Jessamin A. Montuya of Tudla Media Productions,

suing in her capacity as a citizen, in vindication of public and constitutional rights, as she is a journalist, political blogger, internet user, and social media account holder whose

constitutional rights to freedom of expression, speech, and due process, among other rights, will be violated with the enactment

and implementation of R.A. No. 10175, and whose office address is 42A Driod St., Bgy. Kaunlaran, Quezon City;

2.20.

Shane Claudine David of Tudla Media Productions,

suing in her capacity as a citizen, in vindication of public and constitutional rights, as she is a journalist, political blogger, internet user, and social media account holder whose

constitutional rights to freedom of expression, speech, and due process, among other rights, will be violated with the enactment and implementation of R.A. No. 10175, and whose office address is 42A Driod St., Bgy. Kaunlaran, Quezon City;

2.21.

Camille P. Sueno, student of the Pamantasan ng

Lungsod ng Marikina, suing in her capacity as a citizen, in vindication of public and constitutional rights, as she is a journalist, political blogger, internet user, and social media account holder whose constitutional rights to freedom of expression, speech, and due process, among other rights such as press freedom, will be violated with the enactment and implementation of R.A. No. 10175, and whose office address is No. 6 Road 1, Dona Petra Compound, Concepcion, Marikina City;

2.22.

Rozelle Anne S. TIamzon, student of the Pamantasan

ng Lungsod ng Marikina, suing in her capacity as a citizen, in vindication of public and constitutional rights, as she is a journalist, political blogger, internet user, and social media account holder whose constitutional rights to freedom of expression, speech, and due process, among other rights such as press freedom, will be violated with the enactment and implementation of R.A. No. 10175, and whose office address is No. 6 Road 1, Dona Petra Compound, Concepcion, Marikina City;

3.

The Petitioners may be served with summons and other legal

processes of this Honorable Court through their counsel of record, Atty. James Mark Terry L. Ridon, at 89 K-7 St., Kamias, Quezon City.

4.

Public Respondent Executive Secretary Paquito Ochoa may be

served with legal processes at Malacanan Palace, Manila, while Public Respondent Sec. Leila de Lima may be served with legal processes at the Department of Justice, Padre Faura, Manila.

STATEMENT OF FACTS

5.

Republic Act. No. 10175, or the Cybercrime Prevention Act which is

a consolidation of Senate Bill No. 2796 and House Bill No. 5808 was finally passed by the Senate and the House of Representatives on June 5, 2012 and June 4, 2012, respectively.
6.

On September 12, 2012, President Benigno Simeon Aquino III

signed R.A. No. 10175.

7.

On September 18, 2012, R.A. No. 10175 was published in 2

newspapers of general circulation on September 18, 2012.

8.

On October 3, 2012, R.A. No. 10175 will formally take effect in the

Republic of the Philippines.

9.

The petitioners include a legislator who had previously raised

questions on the constitutionality of the law in the legislature, and citizens bloggers, internet users, social media account holders, professors, journalists, among others - in defense and vindication of their public and constitutional rights to expression, speech, press freedom, due process, academic freedom among other rights, all of which are threatened with the enactment and implementation of R.A. No. 10175, particularly Secs. 4(c)4, 5, 6, 7 and Chapter IV.

GROUNDS FOR THE ALLOWANCE OF THE PETITION

I.

ALL THE REQUISITES FOR THE EXERCISE OF JUDICIAL REVIEW ARE PRESENT;

II.

SECS. 4(C)4, 5, AND 6 OF R.A. NO. 10175 RELATIVE TO LIBEL ARE UNCONSTITUTIONAL DUE TO VAGUENESS;

III.

PARTICULAR SECTIONS OF CHAPTER IV OF R.A. NO. 10175 ARE UNCONSTITUTIONAL FOR VIOLATING CONSTITUTIONAL DUE PROCESS, AMONG OTHER RIGHTS;

DISCUSSION

I.

ALL THE REQUISITES FOR THE EXERCISE OF JUDICIAL

REVIEW ARE PRESENT;

10.

In constitutional litigations, the power of judicial review is limited by

four exacting requisites, viz: (a) there must be an actual case or controversy; (b) petitioners must possess locus standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the case.1

11.

The petitioners are all Internet users, who either participate, write,

comment or post in blogs, websites and pages, social media networks or publish articles online in different websites and pages for public viewing;

Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133 (2003).
9

12.

All their online articles, posts, comments and similar writings

remain on the Internet, some or many of which may be critical of public personalities or officials;

13.

Upon the effectivity of R.A. No. 10175, all their online articles,

posts, comments and similar writings remain on the Internet;

14.

Some of these online articles, posts, comments and similar writings

that remain on the Internet cannot be voluntarily removed or taken down on their own;

15.

As a result of these online articles, posts, comments and similar

writings, some or many of which may be critical of public personalities or officials, the petitioners may be subject to criminal prosecution under Secs. 4(c)4, 5, 6 and 7, and enforcement proceedings under Chapter IV upon the effectivity of R.A. No. 10175;

16.

Moreover, as Secs. 4(c)4, 5, 6 and 7 relative to Cyberlibel and Libel

are void and overbroad, the constitutional rights to due process, speech, expression, free press and academic freedom, among others, shall be curtailed and produce a chilling effect against constitutionally protected speech; Clearly, the petitioners direct and personal interest in the outcome

17.

of the challenge of constitutionality against R.A. No. 10175 is most apparent, as they are in immediate danger of sustaining the direct injury of criminal prosecution as a result of the laws enforcement due to continuing existence of their online articles, comments, posts and other similar writings in the Internet upon the effectivity of the Act.

18.

Moreover, as this petition delves not merely in questioning the

constitutionality of a penal statute but defending the constitutional guarantee of free speech and expression, a facial challenge of the statute is justified.

19.

The allowance of a facial challenge in free speech cases is justified

by the aim to avert the chilling effect on protected speech, the exercise of which should not at all times be abridged.2
2

KMU vs. Ermita, G.R. No. 178554, October 5, 2010.

10

II.

SECS. 4(C)4, 5, AND 6 OF R.A. NO. 10175 ARE

UNCONSTITUTIONAL DUE TO VAGUENESS;

20.

Secs. 4(c)4, 5 and 6 of R.A. No. 10175 relative to libel are

unconstitutional due to vagueness.

21.

A statute or act suffers from the defect of vagueness when it lacks

comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the

Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.

22.

At the onset, to reject any impression that the void for vagueness

doctrine is being applied to invalidate a penal statute, this case particularly relates to the invalidation a penal provisions which purportedly violate the constitutional right to free speech, expression, free press and all other related rights. Section 4(c)4 of R.A. No. 10175 states, to wit (4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

23.

24.

The elements of libel under Sec. 4(c)4 are therefore:

a.The

performance of any of the acts under

Art. 355, which includes the commission of libel by means of:

11

i.

writing,

ii.printing, iii.lithography, iv.engraving, v.radio, vi.phonograph, vii.painting, viii.theatrical

exhibition, exhibition, or

ix.cinematographic x.any

similar means;
b.

Committed

through

computer

system or any other similar means, which may be devised in the future.

25.

It must also be noted that this form of libel made through the means

under Art. 355 of the Revised Penal Code and committed through a computer system is a new offense created under a special law.

26.

However, under this special law, no penalty is mentioned or

prescribed for the new offense.

27.

Neither does the law make any reference to the penalties

prescribed under Art. 355, as it merely adopts its elements and not its penalties.

28.

Under the principle of strict construction against the State of penal

laws, it cannot be made to construe that the commission of the form of libel under Sec. 4(c)4 shall be similarly punished under the penalties in Art. 355 of the Revised Penal Code as absolutely no reference is made that such adoption of penalties under Art. 355 of the Revised Penal Code shall be done.

29.

Thus, in the absence of a prescription of a penalty of this form of

libel under the special law, and without reference to the penalties prescribed under the Revised Penal Code, men of common intelligence must necessarily guess at its meaning and differ as to its application.

12

30.

As a result, persons engaged in acts or activities through a

computer system are left with no certainty whether their acts constitute punishable conduct under this form of libel under R.A. No. 10175, and what type of penalty shall be imposed upon them upon the commission of such acts.

31.

Even those actually engaged in libelous conduct through acts or

activities through a computer system are left with no certainty whether their acts constitute punishable conduct under this form of libel under R.A. No. 10175 and what type of penalty shall be imposed upon them upon the commission of such acts.

32.

Moreover, by merely referring to Art. 355 of the Revised Penal

Code in creating this new type of libel, the previous protection afforded legitimate and protected speech under Art. 3543 of the Revised Penal Code consistent with the fundamental freedoms and rights granted under the Constitution is nowhere to be found in R.A. No. 10175.

33.

By failing to make reference to the protections afforded under Art.

354, it is therefore reasonable to assume that the same protection is not afforded similarly situated persons charged under this new type of libel.

34.

This will therefore produce the pernicious chilling effect against free

speech and expression, which the Constitution so abhors.

35.

Furthermore, it must be noted that Sec. 6 of R.A. No. 10175

creates further confusion and vagueness as to which penal statute and penalty shall govern the commission of this new type of libel. Sec. 6 of the assailed law states, to wit

36.

Art. 354. Requirement for publicity. Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: 1. A private communication made by any person to another in the performance of any legal, moral or social duty; and 2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.
3

13

SEC. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

37.

The section is best described as creating not a new criminal

offense, but creates a special aggravating circumstance in the form of the commission of the criminal offenses by, through and with the use of information and communications technology.

38.

The offenses, when committed through, by or with the use of

informations and communications technology shall be punished one degree higher than the penalty prescribed in the Revised Penal Code and special laws.

39.

It must thus be noted that with the operation of this provision, the

commission of the old type of libel under the Revised Penal Code made by, through and with the use of information and communications technology may thus open persons engaged therein to criminal liability, independently of the new type of libel R.A. No. 10175 committed through the use of a computer system.

40.

With the absence of any mention of any penalty or reference to any

penalty under the Revised Penal Code in the commission of the new type of libel under R.A. No. 10175, and the raising of the penalty of the old type of libel provided information and communications technology is used in the commission of the crime, the public is therefore left to guess whether in fact there exists liability in the event that libelous remarks are made on the Internet, particularly when made through a computer system.

41.

The public is left to guess whether criminal liability will attach under

the old type of libel committed through information communications technology

14

as per Sec. 6 of R.A. No. 10175, or the new type of libel through the use of a computer system under Sec. 4(c)4 of the same law.

42.

Furthermore, it cannot be assumed that the use of a computer

system and the use of information and communications technology are one and the same.

43.

Under the assailed law, only the phrase computer system has been

defined. There is no definition for the phrase information and communications technology.

44.

The public is therefore left to guess as to the meaning of

information and communications technology relative to the commission of offenses in the Revised Penal Code and special laws.

45.

Because of this vagueness and confusion, this will most definitely

give law enforcers unbridled discretion in carrying out the laws provisions, become an arbitrary flexing of the Government muscle, and produce a chilling effect on legitimate and protected speech.

46.

As a result, due to the vagueness and confusion of the statute, the

penal statute will intrude upon perfectly legitimate and protected speech.

III.

PARTICULAR SECTIONS OF CHAPTER IV OF R.A. NO. 10175 ARE UNCONSTITUTIONAL FOR VIOLATING CONSTITUTIONAL DUE PROCESS, AMONG OTHER RIGHTS;

47.

Among the highest of all constitutional rights is the right to due

process, in which no person may be deprived of life, liberty or property without due process of law.

48.

However, the Chapter on Enforcement and Implementation of R.A.

No. 10175 runs afoul against this great constitutional dictum.

15

49.

Sec. 12 of R.A. No. 10175, or the provision on the real-time

collection of traffic data violates the constitutional right to privacy of communications.

50.

While the requirement of a court warrant for the collection of non-

traffic data4 such as identity and content is laudable, what is not disclosed is the fact that actual traffic data collected and received refers not only to the communications origin, destination, route, time, date, size, duration, or type of underlying service, as defined in the law, but will also necessarily contain content and identities, both of which are inseparable from, and necessarily included in the collection of statutorily defined traffic data.

51.

Thus, as the real-time collection of traffic data necessarily includes

data which require a court warrant, such traffic data no matter how limited by statute must be declared unconstitutional as an infringement to the constitutional right to the privacy of communications.

52.

Sec. 13 of R.A. No. 10175, or the provision on the preservation

of computer data violates the constitutional right to due process relative to the undue deprivation of property.5

SEC. 12. Real-Time Collection of Traffic Data. Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.
4

Traffic data refer only to the communications origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities. All other data to be collected or seized or disclosed will require a court warrant. Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information. The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed: (2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence. 5 SEC. 13. Preservation of Computer Data. The integrity of traffic data and subscriber information relating to communication services provided by a service provider shall be preserved for a minimum period of six (6) months from the date of the transaction.
16

53.

The order of preservation of computer data is given by law

enforcement authorities including the further extension of such preservation.

54.

However, it must be noted that the preservation of computer data is

akin to the garnishment of personal property or an asset preservation order in civil forfeiture proceedings in which the free use and disposition of private property is restricted.

55.

The preservation of computer data order, including its extension

does not provide the owner or possessor of computer data even the minimum requirements of due process, particularly notice and the opportunity to be heard as to why his computer data is being order preserved and his use and disposition restricted.

56.

Sec. 15, or the provision on Search, Seizure and Examination

of Computer Data6 violates the constitutional right against unreasonable searches and seizures.

Content data shall be similarly preserved for six (6) months from the date of receipt of the order from law enforcement authorities requiring its preservation. Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a notification to preserve the computer data until the termination of the case. The service provider ordered to preserve computer data shall keep confidential the order and its compliance. 6 SEC. 15. Search, Seizure and Examination of Computer Data. Where a search and seizure warrant is properly issued, the law enforcement authorities shall likewise have the following powers and duties. Within the time period specified in the warrant, to conduct interception, as defined in this Act, and: (a) To secure a computer system or a computer data storage medium; (b) To make and retain a copy of those computer data secured; (c) To maintain the integrity of the relevant stored computer data; (d) To conduct forensic analysis or examination of the computer data storage medium; and

17

57.

Under this section, it appears that the mandatory constitutional,

procedural and jurisprudential requirements of a valid search and seizure of property shall not apply to the search, seizure and examination of computer data.

58.

It must be emphasized that the mandatory requirements of a valid

search and seizure applies not merely to physical objects subject of a search and seizure but must also necessarily apply to incorporeal property such as computer data.

59.

Sec. 17 or the provision on the destruction of computer data

violates constitutional due process for the destruction and deprivation of property without due process of law.

60.

All computer data subject to a preservation or examination order

shall be subject to destruction, without any qualification whether such computer data were indeed objects, proceeds or instruments of a criminal offense.

61.

The destruction constitutes an unlawful deprivation of property by

the State as no proceedings are conducted to determine whether such property subject to destruction were indeed objects, proceeds or instruments of a criminal offense which would validly justify such destruction.

62.

Sec. 19 or the provision on restricting or blocking access to

computer data7 is unconstitutional for being void and overbroad relative to the exercise of constitutionally protected speech and expression.

(e) To render inaccessible or remove those computer data in the accessed computer or computer and communications network. Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning of the computer system and the measures to protect and preserve the computer data therein to provide, as is reasonable, the necessary information, to enable the undertaking of the search, seizure and examination. Law enforcement authorities may request for an extension of time to complete the examination of the computer data storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of approval by the court. 7 SEC. 19. 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.
18

63.

Before proceeding any further, there is a most fundamental inquiry

how can a mere computer data be found prima facie in violation of the provisions of R.A. No. 10175, as persons are the only entities that can be found in violation of a penal statute and subject to criminal liability?

64.

As such, the provision is void due to overbreadth, as the order of

blocking or restricting access to computer data may infringe upon legitimate and protected acts and speech taken down without the benefit of due process, notice and hearing.

65.

The

prospect

of

news

websites,

political

blogs,

online

commentaries summarily taken down based on a prima facie finding of a violation of a computer data is all too real under this provision.

66.

As a result, the Department of Justice becomes an all-too powerful

body which can impose prior restraint and subsequent punishment upon protected speech on the mere guise of restricting or blocking access to computer data.

67.

If there is one that should never be allowed to see the light of day,

even upon the effectivity of this Act, it is Sec. 19.

ALLEGATIONS IN SUPPORT OF THE APPLICATION FOR A TEMPORARY RESTRAINING ORDER (TRO)

68.

For reference, Petitioners replead all the foregoing allegations in

support of their prayer for a Temporary Restraining Order (TRO); The foregoing allegations undoubtedly demonstrate Petitioners

69.

clear and unmistakable rights to free speech, expression, due process, among other constitutional rights;

19

70.

Upon the effectivity of the assailed Act, the Petitioners have online

articles, postings, writings, printing and other similar acts which cannot be voluntarily removed from the Internet;

71.

Upon the effectivity of the assailed Act, the Petitioners may be

subjected to criminal liability for the above-mentioned online articles, postings, writings, printing and other similar acts which cannot be voluntarily removed from the Internet;

72.

The assailed Act contains penal provisions which may properly be

the subject of a facial challenge for invalidation due to purported violations of free speech;

73.

The assailed Act contains enforcement provisions which may

infringe upon the constitutional right to free speech, expression and due process;

74.

The Act and its provisions, aside from being unconstitutional are

clearly in violation of the foregoing rights of the Petitioners;

75.

The matter is thus of extreme urgency that, unless immediately

restrained, will inevitably cause damage to the Petitioners who will all suffer grave injustice and irreparable injury;

76.

If not curtailed, the enactment and implementation by the

Respondents of the provisions complained of might also render the final judgment granting the reliefs sought in the instant petition ineffectual.

PRAYER

WHEREFORE, it is respectfully prayed of the Honorable Court that:

1.

Immediately upon the filing of this petition, a Temporary Restraining

Order (TRO) be issued, ordering Respondents and any person acting on their behalf, to cease and desist from implementing R.A. No. 10175 and its provisions;

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2.

After due proceedings, a Decision be rendered

a.

Making the TRO permanent, directing Respondents

and any person acting on their behalf, to cease and desist from implementing the provisions of R.A. No. 10175;

b.

Declaring the unconstitutionality of Republic Act. No.

10175 or its unconstitutional provisions;

Petitioners pray for such other reliefs as are just and equitable under the premises.

Quezon City for the City of Manila, October 1, 2012.

RESPECTFULLY SUBMITTED.

By:

JAMES MARK TERRY L. RIDON Counsel for Petitioners 89 K-7 St., Kamias, Quezon City Roll of Attorneys No. 61374 IBP Receipt No. 892955/8 March 2012/City of Manila PTR No. 6698353/30 April 2012/Quezon City MCLE compliance in the process of completion as counsel was admitted to the Bar only in 2012.

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