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CONGRESS OF THE PHILIPPINES FIFTEENTH CONGRESS Second Regular Session

S E N A T E

S. No. 2796 PREPARED AND SUBMITTED JOINTLY BY THE COMMITTEES ON SCIENCE

AND TECHNOLOGY; CONSTITUTIONAL AMENDMENTS, REVISION OF CODES AND LAWS; EDUCATION, ARTS AND CULTURE; JUSTICE AND HUMAN RIGHTS; TRADE AND COMMERCE; PUBLIC INFORMATION AND MASS MEDIA AND FINANCE WITH SENATORS TRILLANES, ANGARA, ENRILE, ESTRADA, LAPID, VILLAR, DEFENSOR SANTIAGO, MARCOS, REVILLA JR. AND LEGARDA AS AUTHORS

AN ACT DEFINING CYBERCRIME, PROVIDING FOR

PREVENTION, INVESTIGATION AND IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the

Philippines in Congress assembled:

CHAPTER I PRELIMINARY PROVISIONS 1

SECTION 1. Title. This Act shall be known as the 2

ybercrime Prevention Act of 2012 3

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SEC. 2. Declaration of Policy. The State recognizes the vital 1

role of information and communications industries such as content 2

production, telecommunications, broadcasting, electronic commerce, 3

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development. The State also recognizes the importance of providing an 5

environment conducive to the development, acceleration, and rational 6

application and exploitation of information and communications 7

technology to attain free, easy, and intelligible access to exchange 8

and/or delivery of information; and the need to protect and safeguard 9

the integrity of computer, computer and communications systems, 10

networks, and databases, and the confidentiality, integrity, and 11

availability of information and data stored therein, from all forms of 12

misuse, abuse, and illegal access by making punishable under the law 13

such conduct or conducts. In this light, the State shall adopt sufficient 14

powers to effectively prevent and combat such offenses by facilitating 15

their detection, investigation, and prosecution at both the domestic and 16

international levels, and by providing arrangements for fast and reliable 17

international cooperation. 18

SEC. 3. Definition of Terms. For purposes of this Act, the 19

following terms are hereby defined as follows: 20

3

a) Access refers to the instruction, communication 1

with, storing data in, retrieving data from, or otherwise making use of 2

any resources of a computer system or communication network; 3

b) Alteration refers to the modification or change, in 4

form or substance, of an existing computer data or program; 5

c) Communication refers to the transmission of 6

information including voice and non-voice data; 7

d) Computer an electronic, magnetic, optical, 8

electrochemical, or other data processing or communications device, or 9

grouping of such devices, capable of performing logical, arithmetic, 10

routing, or storage functions and which includes any storage facility or 11

equipment or communications facility or equipment directly related to 12

or operating in conjunction with such device. It covers any type of 13

computer device including devices with data processing capabilities 14

like mobile phones and also computer networks; 15

e) Computer system means any device or a group of 16

interconnected or related devices, one or more of which, pursuant to a 17

program, performs automatic processing of data. It covers any type of 18

computer device including devices with data processing capabilities 19

like mobile phones and also computer networks. The device consisting 20

4

of hardware and software may include input, output and storage 1

facilities which may stand alone or be connected in a network or other 2

similar devices. It also includes computer-data storage devices or 3

medium; 4

f) Computer Data refers to any representation of facts, 5

information, or concepts in a form suitable for processing in a computer 6

system including a program suitable to cause a computer system to 7

perform a function and includes electronic documents and/or electronic 8

data messages whether stored in local computer systems or online; 9

g) Computer Program refers to a set of instructions 10

executed by the computer; 11

h) Critical Infrastructure refers to the computer systems, 12

and/or networks, whether physical or virtual, and/or the computer 13

programs, computer data and/or traffic data so vital to this country that 14

the incapacity or destruction of or interference with such system and 15

assets would have a debilitating impact on security, national or 16

economic security, national public health and safety, or any 17

combination of those matters; 18

i) Cybersecurity refers to the collection of tools, policies, 19

risk management approaches, actions, training, best practices, 20

5

assurance and technologies that can be used to protect the cyber 1

2

j) Without Right refers to either: (i) conduct undertaken 3

without or in excess of authority; or (ii) conduct not covered by 4

established legal defenses, excuses, court orders, justifications, or 5

relevant principles under the law; 6

k) Database refers to a representation of information, 7

knowledge, facts, concepts, or instructions which are being prepared, 8

processed or stored or have been prepared, processed or stored in a 9

formalized manner and which are intended for use in a computer 10

system; 11

l) Interception refers to listening to, recording, monitoring 12

or surveillance of the content of communications, including procuring 13

of the content of data, either directly, through access and use of a 14

computer system or indirectly, through the use of electronic 15

eavesdropping or tapping devices, at the same time that the 16

communication is occurring; 17

m) Service Provider refers to : 18

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1) any public or private entity that provides to 1

users of its service the ability to communicate by means of a 2

computer system; and 3

2) any other entity that processes or stores computer 4

data on behalf of such communication service or users of such 5

service; 6

n) refers to any information 7

contained in the form of computer data or any other form that is held by 8

a service provider, relating to subscribers of its services other than 9

traffic or content data and by which identity can be established; 10

1) The type of communication service used, the 11

technical provisions taken thereto and the period of service; 12

2) 13

address, telephone and other access numbers, any assigned 14

network address, billing and payment information, available on 15

the basis of the service agreement or arrangement; 16

3) Any other available information on the site of the 17

installation of communication equipment, available on the 18

basis of the service agreement or arrangement. 19

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o) Traffic Data or Non-Content Data refers to any computer 1

data other than the content of the communication, including but not 2

3

size, duration, or type of underlying service. 4

CHAPTER II PUNISHABLE ACTS 5

SEC. 4. Cybercrime Offenses. The following acts constitute 6

the offense of cybercrime punishable under this Act: 7

A) Offenses against the confidentiality, integrity and 8

availability of computer data and systems: 9

1) Illegal Access The access to the whole or any part of 10

a computer system without right. 11

2) Illegal Interception The interception made by 12

technical means without right of any non-public transmission 13

of computer data to, from, or within a computer system 14

including electromagnetic emissions from a computer system 15

carrying such computer data: Provided, however, That it shall 16

not be unlawful for an officer, employee, or agent of a service 17

provider, whose facilities are used in the transmission of 18

communications, to intercept, disclose, or use that 19

communication in the normal course of his employment while 20

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engaged in any activity that is necessary to the rendition of his 1

service or to the protection of the rights or property of the 2

service provider, except that the latter shall not utilize service 3

observing or random monitoring except for mechanical or 4

service control quality checks. 5

3) Data interference The deletion, deterioration, 6

alteration of computer data without right. 7

4) System Interference The hindering without 8

right of the functioning of a computer system by inputting, 9

transmitting, deleting or altering computer data or program. 10

5) Cyber-squatting The acquisition of a domain 11

name over the internet in bad faith to profit, mislead, 12

destroy reputation, and deprive others from registering the 13

same, if such a domain name is: 14

i. Similar, identical, or confusingly similar to an 15

existing trademark registered with the appropriate 16

government agency at the time of the domain name 17

registration; 18

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ii. Identical or in any way similar with the name of a 1

person other than the registrant, in case of a 2

personal name; and 3

iii. Acquired without right or with intellectual property 4

interests in it. 5

6) Misuse of Devices 6

a. The use, production, sale, procurement, importation, 7

distribution, or otherwise making available, without 8

right, of: 9

i. a device, including a computer program, designed 10

or adapted primarily for the purpose of committing any 11

of the offenses under this Act; or 12

ii. a computer password, access code, or similar data 13

by which the whole or any part of a computer system is 14

capable of being accessed with intent that it be used for 15

the purpose of committing any of the offenses under 16

this Act;. 17

b. The possession of an item referred to in paragraphs 18

6(a)(i) or (ii) above with intent to use said devices for 19

10

the purpose of committing any of the offenses under 1

this section. 2

Provided, That no criminal liability shall attach when the use, 3

production, sale, procurement, importation, distribution, or 4

otherwise making available, or possession of computer 5

devices/data referred to is for the authorized testing of a 6

computer system. 7

B. Computer-related Offenses: 8

1. Computer-related Forgery (a) the input, alteration, or 9

deletion of any computer data without right resulting in 10

inauthentic data with the intent that it be considered or acted 11

upon for legal purposes as if it were authentic, regardless 12

whether or not the data is directly readable and intelligible; (b) 13

the act of knowingly using computer data which is the product 14

of computer-related forgery as defined herein, for the purpose 15

of perpetuating a fraudulent or dishonest design. 16

2. Computer-related Fraud the unauthorized input, 17

alteration, or deletion of computer data or program or 18

interference in the functioning of a computer system, causing 19

damage thereby with fraudulent intent: Provided, That if no 20

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damage has yet been caused, the penalty imposable shall be 1

one degree lower. 2

C. Content-related Offenses: 3

1) Cybersex The willful engagement, maintenance, 4

control, or operation, directly or indirectly, of any lascivious 5

exhibition of sexual organs or sexual activity, with the aid of a 6

computer system, for favor or consideration. 7

2) Child Pornography The unlawful or prohibited acts 8

defined and punishable by Republic Act No. 9775 or the Anti-9

Child Pornography Act of 2009, especially as committed 10

through a computer system. 11

3) Unsolicited Commercial Communications. The 12

transmission of commercial electronic communication with the 13

use of computer system which seek to advertise, sell, or offer 14

for sale products and services are prohibited unless: 15

a) There is a prior affirmative consent from the 16

recipient; or 17

b) The following conditions are present: 18

i. The commercial electronic communication 19

contains a simple, valid, and reliable way for 20

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the recipient to reject receipt of further 1

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from the same source; 3

ii. The commercial electronic communication 4

does not purposely disguise the source of the 5

electronic message; and 6

iii. The commercial electronic communication 7

does not purposely include misleading 8

information in any part of the message in order 9

to induce the recipients to read the message. 10

4) Libel The unlawful or prohibited acts of libel as 11

defined in Article 355 of the Revised Penal Code, as amended, 12

committed through a computer system or any other similar 13

means which may be devised in the future. 14

SEC. 5. Other Offenses. The following acts shall also 15

constitute an offense: 16

1) Aiding or Abetting in the Commission of Cybercrime. 17

Any person who willfully abets or aids in the commission of any of the 18

offenses enumerated in this Act shall be held liable. 19

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2) Attempt in the Commission of Cybercrime. Any person 1

who willfully attempts to commit any of the offenses enumerated in 2

this Act shall be held liable. 3

SEC. 6. Liability under Other Laws. A prosecution under this 4

Act shall be without prejudice to any liability for violation of any 5

provision of the Revised Penal Code, as amended or special laws. 6

CHAPTER III PENALTIES 7

SEC. 7. Penalties. Any person found guilty of any of the 8

punishable acts enumerated in Sections 4A and 4B of this Act shall be 9

punished with imprisonment of prision mayor or a fine of at least Two 10

hundred thousand pesos (PhP200,000.00) up to a maximum amount 11

commensurate to the damage incurred or both. 12

Any person found guilty of the punishable act under Section 13

4A-5 shall be punished with imprisonment of prision mayor or a fine of 14

not more than Five hundred thousand pesos (PhP500,000.00) or both. 15

If punishable acts in Section 4A are committed against critical 16

infrastructure, the penalty of reclusion temporal or a fine of at least 17

Five hundred thousand pesos (PhP500,000.00) up to maximum amount 18

commensurate to the damage incurred or both. 19

14

Any person found guilty of any of the punishable acts 1

enumerated in Section 4C(1) of this Act shall be punished with 2

imprisonment of prision mayor or a fine of at least Two hundred 3

thousand pesos (PhP200,000.00) but not exceeding One million pesos 4

(PhP1,000,000.00) or both. 5

Any person found guilty of any of the punishable acts 6

enumerated in Section 4C(2) of this Act shall be punished with the 7

penalties as enumerated in Republic Act No. 9775 or the Anti-Child 8

Pornography Act of 2009. 9

Any person found guilty of any of the punishable acts 10

enumerated in Section 4C(3) shall be punished with imprisonment of 11

arresto mayor or a fine of at least Fifty thousand pesos (PhP50,000.00) 12

but not exceeding Two hundred fifty thousand pesos (PhP250,000.00) 13

or both. 14

Any person found guilty of any of the punishable acts 15

enumerated in Section 5 shall be punished with imprisonment one 16

degree lower than that of the prescribed penalty for the offense or a fine 17

of at least One hundred thousand pesos (PhP100,000.00) but not 18

exceeding Five hundred thousand pesos (PhP500,000.00) or both. 19

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SEC. 8. Corporate Liability. When any of the punishable 1

acts herein defined are knowingly committed on behalf of or for the 2

benefit of a juridical person, by a natural person acting either 3

individually or as part of an organ of the juridical person, who has a 4

leading position within, based on (a) a power of representation of the 5

juridical person, (b) an authority to take decisions on behalf of the 6

juridical person, or (c) an authority to exercise control within the 7

juridical person, the juridical person shall be held liable for a fine 8

equivalent to at least double the fines imposable in Section 7 up to a 9

maximum of Ten million pesos (Php10,000,000.00). 10

If the commission of any of the punishable acts herein defined 11

was made possible due to the lack of supervision or control by a natural 12

person referred to and described in the preceding paragraph, for the 13

benefit of that juridical person by a natural person acting under its 14

authority, the juridical person shall be held liable for a fine equivalent 15

to at least double the fines imposable in Section 7 up to a maximum of 16

Five million pesos (Php5,000,000.00). 17

The liability imposed on the juridical person shall be without 18

prejudice to the criminal liability of the natural person who has 19

committed the offence. 20

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CHAPTER IV ENFORCEMENT AND IMPLEMENTATION 1

SEC. 9. Real-Time Collection of Traffic Data. Law 2

enforcement authorities, with due cause, shall be authorized to collect 3

or record by technical or electronic means traffic data in real-time 4

associated with specified communications transmitted by means of a 5

computer system. 6

Traffic data refer only to t7

destination, route, time, date, size, duration, or type of underlying 8

service, but not content, nor identities. 9

All other data to be collected or seized or disclosed will require 10

a court warrant. 11

Service providers are required to cooperate and assist law 12

enforcement authorities in the collection or recording of the above-13

stated information. 14

The court warrant required under this section shall only be 15

issued or granted upon written application and the examination under 16

oath or affirmation of the applicant and the witnesses he may produce 17

and the showing: (1) that there are reasonable grounds to believe that 18

any of the crimes enumerated hereinabove has been committed, or is 19

being committed or is about to be committed; (2) that there are 20

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reasonable grounds to believe that evidence will be obtained is 1

essential to the conviction of any person for, or to the solution of, or to 2

the prevention of, any such crimes; and (3) that there are no other 3

means readily available for obtaining such evidence. 4

SEC. 10. Preservation of Computer Data. The integrity of 5

traffic data and subscriber information relating to communication 6

services provided by a service provider shall be preserved for a 7

minimum period of six (6) months from the date of the transaction. 8

Content data shall be similarly preserved for six (6) months from the 9

date of receipt of the order from law enforcement authorities requiring 10

its preservation. 11

Law enforcement authorities may order a one-time extension 12

for another six (6) months provided that once computer data preserved, 13

transmitted or stored by a service provider is used as evidence in a case, 14

the mere furnishing to such service provider of the transmittal 15

document to the Office of the Prosecutor shall be deemed a notification 16

to preserve the computer data until the termination of the case. 17

The service provider ordered to preserve computer data shall 18

keep confidential the order and its compliance. 19

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SEC. 11. Disclosure of Computer Data. Law enforcement 1

authorities, upon securing a court warrant, shall issue an order requiring 2

3

information, traffic data or relevant data in his/its possession or control 4

within seventy-two (72) hours from receipt of the order in relation to a 5

valid complaint officially docketed and assigned for investigation and 6

the disclosure is necessary and relevant for the purpose of investigation. 7

SEC. 12. Search, Seizure, and Examination of Computer Data. 8

Where a search and seizure warrant is properly issued, the law 9

enforcement authorities shall likewise have the following powers and 10

duties: 11

Within the time period specified in the warrant, to conduct 12

interception, as defined in this Act, and: 13

1) To secure a computer system or a computer data 14

storage medium; 15

2) To make and retain a copy of those computer data secured; 16

3) To maintain the integrity of the relevant stored 17

computer data; 18

4) To conduct forensic analysis or examination of the 19

computer data storage medium; and 20

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5) To render inaccessible or remove those computer data 1

in the accessed computer or computer and communications network. 2

Pursuant thereof, the law enforcement authorities may order 3

any person who has knowledge about the functioning of the computer 4

system and the measures to protect and preserve the computer data 5

therein to provide, as is reasonable, the necessary information, to 6

enable the undertaking of the search, seizure and examination. 7

Law enforcement authorities may request for an extension of 8

time to complete the examination of the computer data storage medium 9

and to make a return thereon but in no case for a period longer than 10

thirty (30) days from date of approval by the court. 11

SEC. 13. Restricting or Blocking Access to Computer Data. 12

When a computer data is prima facie found to be in violation of the 13

provisions of this Act, the DOJ shall issue an order to restrict or block 14

access to such computer data. 15

SEC. 14. Non-compliance. Failure to comply with the 16

provisions of Chapter IV hereof specifically the orders from law 17

enforcement authorities shall be punished as a violation of P. D. No. 18

1829 with imprisonment of prision correctional in its maximum period 19

or a fine of One hundred thousand pesos (Php100,000.00) or both, for 20

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each and every noncompliance with an order issued by law 1

enforcement authorities. 2

SEC. 15. Duties of Law Enforcement Authorities. To ensure 3

that the technical nature of cybercrime and its prevention is given focus 4

and considering the procedures involved for international cooperation, 5

law enforcement authorities specifically the computer or technology 6

crime divisions or units responsible for the investigation of cybercrimes 7

are required to submit timely and regular reports including pre-8

operation, post-operation and investigation results and such other 9

documents as may be required to the Department of Justice (DOJ) for 10

review and monitoring. 11

CHAPTER V JURISDICTION 12

SEC.16. Jurisdiction. The Regional Trial Court shall have 13

jurisdiction over any violation of the provisions of this Act including 14

any violation committed by a Filipino national regardless of the place 15

of commission. Jurisdiction shall lie if any of the elements was 16

committed within the Philippines or committed with the use of any 17

computer system wholly or partly situated in the country, or when by 18

such commission any damage is caused to a natural or juridical person 19

who, at the time the offense was committed, was in the Philippines. 20

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There shall be designated special cybercrime courts manned by 1

specially trained judges to handle cybercrime cases. 2

CHAPTER VI INTERNATIONAL COOPERATION 3

SEC. 17. General Principles Relating to International 4

Cooperation. All relevant international instruments on international 5

cooperation in criminal matters, arrangements agreed on the basis of 6

uniform or reciprocal legislation, and domestic laws, to the widest 7

extent possible for the purposes of investigations or proceedings 8

concerning criminal offenses related to computer systems and data, or 9

for the collection of evidence in electronic form of a criminal offense 10

shall be given full force and effect. 11

CHAPTER VII COMPETENT AUTHORITIES 12

SEC. 18. Department of Justice (DOJ). There is hereby 13

created an Office of Cybercrime within the DOJ designated as the 14

central authority in all matters related to international mutual assistance 15

and extradition. 16

SEC. 19. Department of Science and Technology Information 17

and Communications Technology Office (DOST-ICTO). There is 18

hereby created a National Cyber Security Center (NCSC) within the 19

DOST-ICTO designated to formulate and implement a national 20

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cybersecurity plan, and extend technical assistance for the suppression 1

of real-time commission of cybercrime offenses through a Computer 2

Emergency Response Team (CERT). 3

CHAPTER VIII NATIONAL CYBERSECURITY 4

COORDINATING COUNCIL 5

SEC. 20. National Cybersecurity Coordinating Council 6

(NCCC). There is hereby created, within thirty (30) days from the 7

effectivity of this Act, A National Cybersecurity Coordinating Council 8

hereinafter referred to as NCCC, under the control and supervision of 9

the Office of the President, to formulate and implement the national 10

cybersecurity plan. 11

SEC. 21. Composition. The NCCC shall be headed by the 12

Executive Director of the DOST-ICTO as Chairman; with the Director 13

of the NBI; Chief of the PNP; Head of the DOJ Office of Cybercrime, 14

as members; and representatives from the private sector and 15

academe. 16

The NCCC shall be manned by a secretariat of selected 17

personnel and representatives from the different participating agencies. 18

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SEC. 22. Powers and Functions. The NCCC shall have the 1

following powers and functions: 2

a) To prepare and implement appropriate and effective 3

measures related to cybersecurity as provided in this Act; 4

b) To monitor cybercrime cases being handled by 5

participating law enforcement and prosecution agencies; 6

c) To coordinate the support and participation of the 7

business sector, local government units, and nongovernment 8

organizations in cybersecurity programs and other related projects; 9

d) To recommend the enactment of appropriate laws, 10

issuances, measures and policies; 11

e) To call upon any government agency to render assistance 12

in the accomplishment of the NCCC 13

f) To perform such other functions and duties as necessary. 14

CHAPTER IX FINAL PROVISIONS 15

SEC. 23. Appropriations. The amount of Fifty million pesos 16

(PhP50,000,000.00) shall be appropriated annually for the 17

implementation of this Act. 18

SEC. 24. Implementing Rules and Regulations. The 19

Department of Justice in consultation with the Department of Science 20

24

and Technology and the Department of the Interior and Local 1

Government, within ninety (90) days from the effectivity of this Act, 2

shall formulate the necessary rules and regulations for the effective 3

implementation of this Act including the creation and establishment of 4

a national cyber security center with the relevant computer emergency 5

response council or team. 6

SEC. 25. Separability Clause. If any provision of this Act is 7

held invalid, the other provisions not affected shall remain in full force 8

and effect. 9

SEC. 26. Repealing Clause. . All laws, decrees, or rules 10

inconsistent with this Act are hereby repealed or modified accordingly. 11

Section 33-A of Republic Act No. 8792 or the Electronic Commerce 12

Act is hereby modified accordingly. 13

SEC. 27. E ffectivity. This Act shall take effect fifteen (15) 14

days after the completion of its publication in the Official Gazette or in 15

at least two (2) newspapers of general circulation. 16

Approved,