Global Information Society Watch 2014 Global InformatIon SocIety Watch 2014 Communications surveillance in the digital age This report was originally published as part of a larger compilation, which can be downloaded from GISWatch.org AssociAtion for Progressive communicAtions (APc) And HumAnist institute for cooPerAtion witH develoPing countries (Hivos) ISBN: 978-92-95102-16-3 APC-201408-CIPP-R-EN-DIGITAL-207 Creative Commons Attribution 3.0 Licence <creativecommons.org/licenses/by nc nd/3.0> Philippines Communications surveillance in the Philippines: Laws and the struggle for the right to privacy Computer Professionals’ Union incident, which will be the focus of this report, was Rick Bahague accomplished with the facilitation of one of their www.cp-union.com personnel. Furthermore, the Philippines has been a long- Introduction time ally of the United States (US), being a former The Philippines has been crowned the “texting capi- colony. Various agreements are in place which al- tal of the world”1the “social networking capital of low the US Armed Forces to use local resources for the world”,2 and its financial district is ranked as military exercises, to strategically position their the “selfiest city of the world”.3 Data is voluntarily weapons, and for mass surveillance activities. Ed- uploaded and shared by its “netizens” on social ward Snowden revealed in March that the MYSTIC surveillance programme run by the US National media networks through mobile and landline net- 5 works and is a gold mine for any state surveillance Security Agency (NSA) monitors local telcos and activities. Its 106.5 million mobile subscribers sent “scrapes mobile networks for so-called metadata – information that reveals the time, source, and des- two billion text messages daily last year. Fixed tele- 6 phone subscription is almost non-existent, with tination of calls.” a telephone density of four subscribers for every While other governments in countries like Brazil 100 inhabitants, and mobile subscriptions serve and Germany protested the unlawful surveillance as the main communications tool. The digital di- by the NSA, Philippine President Benigno Simeon vide has, however, plagued the country even after “Noynoy” Aquino is not even familiar with the in- the deregulation of the telecommunications indus- cident and has approved another agreement with try. The Philippines is ranked 98th in the world on the US on enhanced defence cooperation, which the Information and Communications Technology will open up more surveillance activities. In a state- Development Index (IDI),4 with the lowest score ment, the Computer Professionals’ Union (CPU) compared to its Asian neighbours. warned that the Enhanced Defense Cooperation There are two monopolies controlling the tele- Agreement (EDCA) “is an invitation for surveillance, drones and establishment of new listening posts communications industry in the country: Globe 7 Telecoms and Philippine Long Distance Telephone violating rights to privacy and sovereignty.” (PLDT). Telecommunications infrastructure is under In this report, we look at the state of communi- the control of corporations. Government communi- cations surveillance in the Philippines, focusing on cations and transactions have to pass through this government policies and how they were applied in a private network infrastructure, which is a concern wiretapping incident. It remains to be seen if these for sensitive information. Because of this, most policies can be used against the growing US mili- state surveillance activities would require some tary presence in the country. cooperation from any of the telecoms monopolies. In fact, the controversial “Hello Garci” wiretapping 1 Tuazon, J. M. (2012, December 4). 20 years on, SMS remains king 5 Robinson, K. (2014, May 22). ‘NSA Gone Wild’ in the Bahamas, in the ‘texting capital of the world’. Interaksyon. Accessed July 17, Mexico, Kenya, the Philippines and more. AccessNow.org. https:// 2014. www.interaksyon.com/infotech/20-years-on-sms-remains- www.accessnow.org/blog/2014/05/22/nsa-gone-wild-in-the- king-in-the-texting-capital-of-the-world (20 years on, SMS bahamas-mexico-kenya-the-philippines-and-more remains king in the ‘texting capital of the world’. Interaksyon) 6 Devereaux, D., Greenwald, G., & Poitras, L. (2014, May 19). 2 MST Lifestyle. (2013, May 21). PH is social networking capital Data Pirates of the Caribbean: The NSA Is Recording Every Cell of the world. Manila Standard Today. manilastandardtoday. Phone Call in the Bahamas. The Intercept. https://firstlook.org/ com/2013/05/21/ph-is-social-networking-capital-of-the-world theintercept/article/2014/05/19/data-pirates-caribbean-nsa- 3 Golangco, V. (2014, March 13). Sexy and social: why Manila is the recording-every-cell-phone-call-bahamas selfiest city in the world. The Guardian. www.theguardian.com/ 7 Computer Professionals’ Union. (2014, March 2). Enhanced cities/2014/mar/13/manila-selfiest-city-most-selfies defense cooperation: an invitation for surveillance, drones and 4 International Telecommunication Union. (2013). Measuring the unregulated communications. Computer Professionals’ Union. Information Society 2013. www.itu.int/en/ITU-D/Statistics/Pages/ www.cp-union.com/article/2014/05/02/enhanced-defense- publications/mis2013.aspx cooperation-invitation-surveillance-drones-and-unregulated Philippines / 193 Policies on communications surveillance ing section shall be inadmissible for any purpose There are several policies governing surveillance, in any proceeding.” As such, the current Revised such as the Anti-Wiretapping Law, Cybercrime Penal Code penalises any unlawful entry, search or Law, Data Retention Law, Human Security Act, seizure carried out in violation of the Bill of Rights. and E-Commerce Act. In addition, the National Republic Act 8792 or the Electronic Commerce 10 Telecommunications Commission has a standing Act of 2000 was the first law to govern electronic Memorandum Circular for the retention of data by transactions in the age of internet in the country. It telecommunications companies. has a dedicated section (Section 31) on privacy or The Anti-Wiretapping Act (AWA) enacted on 19 lawful access: “Access to an electronic file, or an June 1969 is the first law regulating communica- electronic signature of an electronic data message tions surveillance in the country. Section 1 of the or electronic document shall only be authorized AWA8 specifically states: “It shall be unlawful for and enforced in favor of the individual or entity any person, not being authorized by all the parties having a legal right to the possession or the use to any private communication or spoken word, to of the plaintext, electronic signature or file and tap any wire or cable, or by using any other device solely for the authorized purposes. The electronic or arrangement, to secretly overhear, intercept, or key for identity or integrity shall not be made avail- record such communication or spoken word by us- able to any person or party without the consent of ing a device…” However, “any peace officer, who is the individual or entity in lawful possession of that authorised by a written order of the Court” upon electronic key.” a “written application and the examination under On 6 March 2007, the Human Security Act 11 oath or affirmation of the applicant and the wit- (HSA) was signed into law by former President nesses” can do this. Gloria Macapagal-Arroyo. Section 7 of the HSA Before being granted authorisation, the AWA specifically allows law enforcement agencies to enumerates particular strict conditions that have to “listen to, intercept and record, with the use of any be met: (1) “that there are reasonable grounds to mode, form, kind or type of electronic or other sur- believe that any of the crimes enumerated [...] has veillance equipment or intercepting and tracking been committed or is being committed or is about devices, or with the use of any other suitable ways to be committed,” (2) “that there are reasonable and means for that purpose, any communication, grounds to believe that evidence will be obtained message, conversation, discussion, or spoken or essential to the conviction of any person for, or to written words” between people identified by the the solution of, or to the prevention of, any of such government as “terrorists” – or even on the slight crimes,” and (3) “that there are no other means suspicion of being terrorists. readily available for obtaining such evidence.” Five years later, the Cybercrime Prevention Act of 12 Furthermore, the AWA requires that authorisa- 2012 (CPA 2012) was signed by current President tion should (1) identify the person or persons to be Aquino. Section 12 of the law gave law enforcement listened to, (2) identify the peace officer to overhear agencies the power to “collect or record by technical the communication, (3) identify the offence or of- or electronic means traffic data in real-time associ- fences committed or sought to be prevented, and ated with specified communications transmitted by (4) the period of authorisation. All conversations re- means of a computer system.” In February 2014, the corded are then to be submitted to the court within Supreme Court struck down this section of the CPA 48 hours after the expiration of the authorisation. 2012 and ruled that real-time collection of network Section 3 of the Bill of Rights enshrined in the traffic violates the constitution. 1987 Philippine Constitution9 guarantees every Fili- A month before CPA 2012 was put into law, Aqui- pino citizen the