Avoiding the Anti-WireTapping Law

Some colleagues of mine at the College of Law pointed out a potential workaround to the “anti-wiretapping law” dilemma. 

Under relevant US jurisprudence on similar laws, R.A. 4200 only applies if there is a physical tap made on a wire which carries the phone conversation.  After all, this was the technology existing when the law was passed and this was the only crime contemplated by Congress. This seems consistent with the Supreme Court case which held that a telephone extension is not a device contemplated by the law and one overhearing a conversation on extension is not violating the law.

Anyway, the reasoning goes: since the “Hello Garci” tapes were made using the interception of wireless communications, then there is no violation of R.A. 4200.  No wiretap, no crime.  (more…)

CyberCrime Beats Drug Trafficking

As reported in AustralianIT, an advisor for the US Treasury Department disclosed that the global proceeds from cybercrime exceeded that of drug trafficking.  Although she didn’t say so, I’ll bet conviction rates are not comparable either — drug trafficking is more likely to land you in jail. 

This means that if you’re a parent, this is one more thing about your kid you have to worry about.

:(

New Convention on Electronic Contracting

Many thanks to Jong Navarro for pointing out that the UN General Assembly adopted a new convention on electronic contracting.  The UN press release is here and a copy of the convention is here.

I scanned through it and it’s basically a re-statement of the UNCITRAL Model Law on Electronic Commerce but with some additions and clarification on the use of electronic communications for contract formation.

For me, two things stand out in the convention.  (more…)

Constitutional Attack on the Anti-Wiretapping Law

Now that Mr. Garcillano has resurfaced, we are once again faced with the “anti-wiretapping law” problem. On the one hand,  the tapes are needed to uncover the truth about the 2004 Presidential elections and any improper intervention in the same by Mr. Garcillano.  On the other hand, his counsel has said in no uncertain terms that even references to the tape would be improper given that the tapes themselves arose from the commission of a criminal act.

Given the exceptional circumstances, I think it would be proper for the Supreme Court to declare that the application of the Anti-Wiretapping Law to this case would be unconstitutional.  Those exceptional circumstances relate to the Constitutional values that are at stake — the sanctity of the ballot, the right to suffrage, the inherent right of the people to determine their fate through elections and, I believe, the very integrity of our Constitutional system.  The Court must not sit idly by while these fundamental issues are kept from discussion and debate simply on the ground that Mr. Garcillano is entitled to privacy (as implemented by the Anti-Wiretapping Law).  Certainly, Congress could not have contemplated protecting the privacy of government officials who appear to have conspired to undermine basic Constitutional processes — election, investigation, and the search for the truth.  After all, justice is meaningless without truth. (more…)

VoIP Guidelines

The VoIP guidelines are out.  Get a copy here. 

I must say that I’m disappointed at the capitalization requirements put up by NTC.  Internet service providers were not subjected to minimum capitalization requirements of P10 Million.  In fact, today I can set up an ISP with little capital and the NTC will let me.  What’s so special about VoIP services that the NTC is so concerned about “fly-by-night” operators while they’re not nearly as concerned about Internet users?

At any rate, I need to look at these rules in the context of the earlier regulations to see how VoIP providers can get up and running.  Some of the remaining major issues are:

1. How will the NTC intervene in situations where the Telcos refuse to interconnect or offer services to VoIP providers?
2. Will the NTC regulate the service charges of Telcos to VoIP providers to avoid preferential treatment?
3. Will the NTC prevent the Telcos from giving their in-house VoIP business preferential business terms as compared to third-party VoIP providers?

I’ll be mulling these things over the next few days. I’d be happy to hear from you as well.

The Scene: A Show on P2P

Work is a major reason why my posts have been inconsistent.  The other major reason is “The Scene” a made-for-Internet show that’s been running for over a year.  Shows are distributed exclusively on P2P networks.  The story revolves around a group that uploads pirated movies into P2P networks.  Tthe story is fictiona but the premise is not.  Wired reports that a substantial amount of pirated material ends up on P2P networks care of topsites and 30 or so groups that pump the system with TV shows, movies and software.  Despite the so-called “flat” nature of P2P networks, the piracy structure looks exactly like that in the real-world — a virtual pyramid with a handful of suppliers for millions of consumers.

Anyway, check out The Scene.  The next episode is due within a few weeks.  ‘Till then.

A Legal Discussion and Google

Many of the conversations I have with my father are about legal issues.  He takes a position — usually provocative one — and eggs me on to disagree.  I invariably fall for the bait.  We argue, raise our voices, make relevant (but maybe erroneous) citations of law and jurisprudence, invent non-existent scientific data or studies, bluf and oftentimes, agree to disagree.  Believe me, it may sound unpleasant but neither of us leaves with hard feelings.  Discussions of law are never personal, it’s one way to waste time.

Today was slightly different because we happened to talk when I was on-line.  He said Dr. Fortun, a forensic expert, said that it is only in the Philippines where paraffin tests are admissible and that since the ’60’s these had been discredited in the US. 

I didn’t disagree.  Instead of offering a truly uneducated, equally provocative and contrary opinion, I Google’d.  And surprisingly I hit pay dirt. 

In the case of People v. Cajucom, our Supreme Court (citing earlier cases), reiterated their holding that paraffin tests are inconclusive as evidence.  The Court, through Justice Ynares-Santiago, said: (more…)

Corporations and Moral Damages

One of the things that sticks to a lawyer’s mind about damages is that a corporation is not entitled to moral damages.  Moral damages are a form of compensation decreed by a court in instances where the defendant suffers:

physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury

Corporations don’t experience any of the above — when was the last time a corporation suffered wounded feelings or experience physical suffering?  In one case, though, the Supreme Court recognized that Corporations can be entitled to moral damages if their financial reputation had been harmed.

Well, now the Supreme Court has added another instance where corporations can collect moral damages — in libel cases.  In Filipinas Broadcasting Network, Inc. v. Ago Medical and Educational Center-Bicol Christian College ofMedicine, the Court held that in all cases of libel, corporations can be awarded moral damages.  The Court, through Justice Antonio Carpio (who, as a law student, authored a good law journal article on intentional torts), said: (more…)

Having Problems with your Digital Camera?

A few weeks ago, our digital camera died on us.  Actually everything works except it can’t take pictures.  All I get are pure black images and the occasional streaks.  I was all set to throw it out until I saw this article which talks about expected digital camera failures for most brands if the unit was manufactured between 2000 and 2004.

If you’re having similar problems, go have your camera checked out by an authorized service center. Most manufacturers have issued their own notices.   In our case, Canon will be making the repairs for free.  Looks like I dodged a P20K bullet.  At least for now.

Footnote-picking in the Spouse-Picking Case

I am, by far, not the first lawyer ever to say I have disagreed with a number of Supreme Court decisions.  Even law students have a list of their favorites.  One case that’s on my top ten is  Duncan Association of Detailman v. Glaxo where the Supreme Court said, in effect, that your employer has a legitimate right to regulate your choice of spouse as part of its goal in protecting its commercial interests.  In that case, the Court upheld the validity of a company policy prohibiting employees from marrying persons employed by a competitor. 

I don’t know about you, but I think the choice of spouse is an intimately private decision and one which the State (much less a private company) is not entitled to interfere with.   Who I marry is part and parcel of my pursuit of happiness and an inherent right.  After all, what is liberty worth if the State can regulate or tolerate the regulation of such intimate life choices? 

Going back to the case. I read it again today and I noticed that the Court used a US case to support its decision.  This isn’t unusual.  Despite the Court’s own assertion that the “umbilical cord” between Philippine and US jurisprudence has been cut, many of its decisions rely heavily on American case law.  Well, here’s what the Court said:

As held in a Georgia, U.S.A case,[22] it is a legitimate business practice to guard business confidentiality and protect a competitive position by even-handedly disqualifying from jobs male and female applicants or employees who are married to a competitor. Consequently, the court ruled than an employer that discharged an employee who was married to an employee of an active competitor did not violate Title VII of the Civil Rights Act of 1964.[23] The Court pointed out that the policy was applied to men and women equally, and noted that the employer’s business was highly competitive and that gaining inside information would constitute a competitive advantage.

The case referred to in Footnote 22 is:

Emory v. Georgia Hospital Service Association (1971), DC Ga., 4 CCH EPD ¶ 7785, 4 BNA FEP Cas 891, affd (CA5) 446 F2d 897, 4 CCH EPD ¶ 7786; Cited 45 Am Jr 2d Sec. 469.

(The entire case is quoted at the end of this post) (more…)

Post Bar-tum Depression and Anxiety

Whether they admit it or not, all lawyers have gone through it - a mixture of dread, panic, depression, anxiety, fear, regret and self-loathing that lasts the moment they hand in their last Bar bluebook until the results come out.  After all, the bar determines whether the past 4 or 5 (and for some, even more) years have been in vain.  Among ourselves, we share stories of people who broke down, zoned out and gone crazy with the stress.  And then there are those who seemed not to suffer, or learned how to suffer in silence, or worse, become insufferable for their over-confidence. 

One of our graduates currently on this vigil describes it like this:

i think the bar scarred me for life and i can only get over it once i’m sure i passed. til then, i’ll continue begging for a miracle. if you’ve read harry potter, the bar was like a dementor that sucked my happy thoughts…it left me empty and always in fear. graduates like me who had just taken the bar are of lowest in rank in the law world… we’re neither here nor there. we need to take everything — including the stinkiest crap — to muster enough good karma to get at least 75%. needless to say, we are at the mercy of the fates. hahaha! drama ba?

(more…)

HLSAAP November Fellowship Cocktails

The Harvard Law School Alumni Association of the Philippines is inviting all HLS alumni (SJD, LLM, ITP, PIL, etc.) to attend its November Fellowship Cocktails which will be held at the SGV Executive Lounge, SGV Building, Ayala Avenue, on November 30, 2005 at 5:00 p.m.  (RSVP  Leila – 849-2357 / 848-0114).

Our special guest speaker is the OIC Commissioner of the Bureau of Internal Revenue, Jose Mario C. Buñag, who will discuss, among others, the new eVAT regulations.

Many thanks to our sponsor, Sycip Gorres & Velayo (Ernst & Young).

Memorial Service for Jackie Fernandez-Suntay

I met Jackie Fernandez-Suntay a few years ago when I went for my LLM.  Among the Pinoy students in the Boston area, she and her husband Bobbit were one of the “old-timers.”  They’d been in Harvard for about 3 or 4 years when I met them.  Jackie had completed fellowships at Harvard’s MassGen Hospital and Bobbit was pursuing his PhD in education at the EdSchool. I understand it was during this time that Jackie was diagnosed with cancer.  Although the prognosis was bleak, Jackie fought bravely and with arguably the best medical care in the world and her own determination, she outlived her doctors’ expectations.  In early October, she passed away in the company of her husband and family.

There will be a memorial service for Jackie on Saturday, 12 November 2005, at the residence of Mrs. Dely Panlilio Fernandez: 12 Pili Avenue, South Forbes, Makati. Mass will be at 5:00 PM, followed by the light refreshments.

In lieu of flowers, Bobbit requests that we donate to the cancer wellness foundation that Jackie and Bobbit started when they learned that she and her dad had cancer. Checks may be made out to: The Carewell Community Foundation. They accept donations in dollars or pesos. For more info, go here: www.carewellcommunity.org.

China and Western Pop Culture

Proof positive that American pop culture thrives even in Communist China.  Enjoy!

First Year Law School In a Nutshell

Look at this funny article on freshman law subjects entitled  The Five-Minute Law School: Everything You Learn In Your First Year, More or Less.

Thanks to Gerry Banzon for pointing this out.

An OnLine Interview on Press Freedom

A few weeks ago, I spoke at a PCIJ event on media and blogging.  It was a great session where I saw firsthand the issues media people are facing in relation to blogging.  It seems a journalism student in Australia caught the session from the PCIJ blog and sent me an email with a bunch of questions.  I marked the email with the intention of responding but I haven’t had the time.  So, I figured I’ll multi-task and make the interview the subject of today’s post.

Here’s a quote from the email to put the questions in perspective:

I’m a journalism student in Australia writing a feature on press freedom in the Philippines. I am also an Internet Media activist (I am involved with both global and local Indymedia, and have worked with both Manila and QC Indymedia, and various geek collectives) I have been especially interested in blogging as a new way to overcome censorship.

Whilst interning at the IFJ I have become particularly interested in the killings of Filipino journalists, and some of the practical reponses that have been made. I have also been following the Arroyo impeachment case, and resulting acts of censorship on the media and protestors.

After listening to your presentation (online) at the recent PCIJ blog conference, I was really hoping to interview you about blogging, with particular emphasis on the legal issues surrounding it.

Apart from your personal blog, what other internet related projects are you involved with?

I’m the Director of the U.P. Law Internet and Society Program (ISP) and we’re currently pursuing projects on open standards, free/open source software, information privacy, Creative Commons Philippines and electronic evidence.

What prompted the organising of iblog?

I guess you can call us copycats.  While I was taking my masters, the Berkman Center organized not one but two blogger summits called BloggerCon.  One was held in the Fall of 2003 and the other in the Spring 2004 at Harvard Law School.    I was so busy I didn’t get to attend either one.  

When I got back to the Philippines, blogging was clearly catching hold and we at the ISP felt that the time was right to get everyone together for summit.  Besides, we were curious what the bloggers looked like in person.
(more…)

Blog Retraction PCIJ-Style

Blogs are said to be superior than traditional media because bloggers can easily acknowledge their mistakes without burying them in the lower right hand corner of page 15, beside the obits.  After all, the retraction appears on the front page and lingers until enough posts are made to push it to the archives.  Still, this made me think about how best to make a retraction on one’s blog. 

Here’s what I came up with:

1. Make a new post with the retraction, quote the odious language, link to that post,  state the correct facts and say “I’m sorry.”  Copious amounts of regret and contrition are highly recommended.  Self-flagellation, too, but noone’s requiring it. 
2. Do not amend the original post except to add at the beginning a new parapraph (maybe in bold or italicized text) to the effect that certain portions of the following post are erroneous and we have acknowledged them in another post.  Make a link  to the retraction post.
3. If you like, you can rewrite the original post with the correct info and post it anew.  Create links to-and-from the original, retraction and corrected posts.

(more…)

A Legal Side Issue on the PCIJ TRO

According to Yuga and picked up by iBlog, the PCIJ Blog reports that its post on Jonathan Tiongco had been removed in compliance with a court order served on them on a holiday. 

The court also banned the PCIJ, for the 20-day duration of the TRO, from “broadcasting, publishing or posting or causing to broadcast, publish, or post articles and statements similar and related to, or connected and in conjunction with,” that blog post.

The TRO was issued presumably in protection of the privacy rights of Tiongco’s wife and children despite the fact that the PCIJ neither mentions or refers to any of them.  Nor are they in a position to assert Jonathan Tiongco’s right to privacy.  I can’t recall a case where you can use a proxy to invoke your personal right — even though Constitutionally protected.  Besides, Tiongco’s own right to privacy is diminished since by his own actions, he has become a public figure. After all, he issued public statements on a matter of intense public interest — the authenticity of the “Hello Garci” tapes.  In any case, neither he nor his wife and children are entitled to the TRO especially when weighed against the PCIJ’s freedom of express.  Let’s wait for the Supreme Court to rule on that one.

My side issue refers to this part of the PCIJ post:

(W)e cannot repeat the  facts  about Tiongco that we had revealed in our blog post, nor can we say what Mrs. Tiongco found so offensive in it. (That post, however, is cached in Google and can be downloaded from the Google website, which is not covered by this court order.)

While the folks at the PCIJ complied with the TRO by taking the offending post down, I believe they violated it when they directed others to view it from an alternate source.   Don’t believe me?  Here’s the Google cache.  It took me less than a minute to get it.  When you search through the PCIJ Blog for the words “Jonathan Tiongco”, the post is the top result.  See the results here. 

In fact, by this post, I’ve already republished it, haven’t I?  I’m not violating the TRO.  It doesn’t apply to me.  But having followed the instructions given out by the PCIJ, are they not indirectly “publishing” it?  This would be an interesting issue to raise before the QC RTC. (more…)

The Ramos Surveillance

Malacanang has been quick to deny that former Pres. Ramos has been under surveillance.  The Inquirer reports that:

President Gloria Macapagal-Arroyo yesterday issued a statement branding as “malicious and false” the news report (not in the Inquirer) that Ramos was under government surveillance.

She ordered an investigation of the report and the imposition of disciplinary action against “any rumor mongers in uniform.”

After the “Hello, Garci” tapes, noone in his right mind can ever believe such a denial from, of all people, GMA.  In the case of Commr. Garcillano’s surveillance, Malacanang either ordered it or it was done without its knowledge.  Either way, Malacanang was in no position to issue a denial — they would either be lying or worse, ignorant of the facts. 

Ramos’ case is no different from the Garci affair, Malacanang is either in the dark or knee deep.  In that situation, the President’s denial is not worth much.  Maybe we’ll soon see Sec. Bunye holding up 2 sets of CDs. 

The 2005 New York City Marathon

Being the 5th boy in the family, I’ve always tried out the sports my older brothers ventured into.  We’re not a very athletic family and even though we could have formed our own starting 5 , noone plays or even watches basketball.  Our eldest, Joel, is perhaps the jock of the family.  He swims, climbs mountains and plays a mean game of table tennis (having trained with the Philippine team and even represented the country in some meets).  R1 lifted weights in high school and after a long hiatus (and 200 or so pounds later), returned to body building with a vengeance.  R2 played soccer in high school and used to jog on regular basis.  Three kids later, he’s now involved in baseball — little league — as a manager.  Myself, I dabbled in Taekwondo in High School and joined the Track team in Ateneo grade school where my best finish was 3rd place in a 4×100 relay race. Now, I jog regularly and occasionaly delude myself into thinking I can play golf.

I don’t recall M. ever playing any sports.  Well, since the tech bubble blew up and he started lining his kitchen walls with his stock options, he’s been very active.  A true Ilokano if I ever knew one, I bet he started exercising only to save on health insurance premiums.  So, he’s been running and participating in 5K/10K runs in the San Francisco Bay Area.  On top of that, he took up cycling — riding to the peak of Mt. Tam regularly and even going into wine country.  He told me he’s even bonked — a cycling term referring to those stupid enough to go at it till they lose all energy. (The English have their own views on bonking, though.) 

What’s all of this got to do with the 2005 NYC Marathon? (more…)