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State of Surveillance in the Philippines

Date:
Tuesday, March 29, 2016
Written by:
Jessamine Pacis
Introduction

With a history immersed in years of colonialism and tainted by martial law, Philippine
society is no stranger to surveillance. Even now, tales of past regimes tracking their
citizens every move find their way into peoples everyday conversations. This, for the
most part, has kept Filipinos vigilant over their hard-earned right to privacy and freedom
of expression.

However, it is difficult to gauge how much this level of awareness has influenced the
populations view of the slew of surveillance incidents that have occurred in recent
years.

The Philippines has emerged, and is steadily retaining its place, as one of the biggest
users of mobile and internet in Southeast Asia. In this era of increased connectivity,
policies and regulating bodies on communication technologies are becoming more
critical, as demonstrated by very recent developments such as the long-delayed
creation of the National Privacy Commission.

The Past

Several prominent cases have directed the spotlight towards the prevalence of
communications surveillance in the country. The most controversial incident to date
remains the Hello Garci scandal, in which a wiretapped conversation between former
President Gloria Macapagal-Arroyo and an election commissioner exposed what
appeared to be an electoral fraud scheme favoring Arroyo during the 2004 presidential
elections. Other notable incidents include a leaked recorded conversation between
former President Corazon Aquino and two Cabinet members regarding the impact of the
then-new Constitution on U.S. military bases in the country.
The Present

The current internet penetration rate and use in the Philippines is remarkably high,
especially considering the countrys dismal internet speed. One global study also
ranked the country as being first in daily internet use (in terms of number of hours spent
online), with an average of 6.3 hours of computer use per day and 3.3 hours per day if
mobile device owners(the global median is 2.7 hours). Social media use is also popular,
with the country taking credit for 30 million Facebook accounts in 2013. Such high levels
of usage are puzzling given the countrys average internet connection speed of 2.5
Mbps compared tothe global rate, which is 4.5 Mbps.

The Philippine legal framework generally frowns upon communication surveillance.


Although the term has yet to be defined under domestic law, few would contest the fact
that it is proscribed or restricted. This view proceeds mainly from the Constitutional
guarantee of the privacy of communication and correspondence, and the number of
international conventions on privacy and human rights the country subscribes to,
namely: the Universal Declaration on Human Rights (UDHR), the International
Covenant on Economic, Social and Cultural Rights (ICESCR), and the International
Convention on the Elimination of All Forms of Racial Discrimination. Communications
surveillance is also considered a felony or crime in certain cases, as can be gleaned
from the following statutes: the Revised Penal Code, the Electronics Engineering Law of
2004, and the Anti-Wiretapping Act of 1965. Nevertheless, other laws sanction the
activity as a legitimate law enforcement measure for specific purposes, such as in the
Expanded Anti-Trafficking in Persons Act of 2012, the Human Security Act of 2007, and
the Anti-Child Pornography Act of 2009.

At present, the two most important statutes concerning digital privacy and surveillance
are the Cybercrime Prevention Act (CPA) of 2012 (RA 10175) and the Data Privacy Act
(DPA) of 2012 (RA 10173). Regarding the former, it is worth noting that although the
Supreme Court has already struck down a provision that would have allowed law
enforcement authorities to collect or record traffic data through electronic means in real-
time without the need for judicial authori sation, the law still allows the interception of
communications and the disclosure and preservation of computer data in specific
conditions. RA 10173, on the other hand, provides possible legal remedies against
communication surveillance. It establishes the general rule that the processing of
privileged information is a prohibited activity, subject to certain exceptions.

However, while the CPA and the DPA have laid the groundwork for a comprehensive
legal regime on privacy, implementation is taking longer to fully take off. In fact, although
both laws were enacted in 2012, the implementing rules and regulations for the CPA
were published only in 2015, whereas the National Privacy Commission, tasked to
implement the rules for the DPA were appointed only in March 2016.

The Future

Numerous reports suggest that the Philippine government has acquired, or has been
planning to acquire, various surveillance technologies, which include: (1) PISCES, a US
government-developed biometric identification technology used for border control;
(2) IMSI catchers, or phone monitoring kits that provide active intercept capabilities;
(3)Galileo Remote Control System, an intrusion malware tool; and (4)Signal, a New
Zealand-manufactured software for large-scale social media analysis. The Philippine
governments interaction with its U.S. counterpart is particularly significant, considering
that the latter has constantly been accused of engaging in surveillance activities within
the countrys borders. In early 2015, for instance, a downed US military surveillance
drone was discovered in the Quezon province. Documents leaked by former US
National Security Agency (NSA) contractor Edward Snowden in May 2014 also revealed
that the NSA had access via DSD asset in a Philippine provider site and collects
Philippine GSM, short message service (SMS), and Call Detail Records.
There is some degree of consolation in a recent development. In March 2016, almost
four years after the DPA mandated the creation of the National Privacy Commission
(NPC), the first NPC commissioner anddeputy commissioners were finally appointed.
The NPC is tasked to develop the implementing rules and regulations of the DPAa
massive undertaking that could dictate the future of privacy and surveillance in the
Philippines. Given the breakneck speed with which new technologies are developed,
the Commission needs to take into account not only the issues and mechanisms that
are currently in place, but also those proposed measures that might eventually affect
the peoples right to privacy. Chief among these are the persistent attempts to require
the registration of SIM cards and establish a national identification system. Both policy
proposals involve the acquisition and use of sensitive information such as biometric
data.

With all the privacy-related issues that confront the Philippines and the rest of the world
today, the NPC is certain to have their hands full. Should they do their mandates justice,
they may very well set the proper tone for the countrys approach to privacy in the
decades to come.
Source: https://www.privacyinternational.org/node/819