SC finalizs guidelines on cybercrime warrants: Smart, Globe ordered to keep phone records for at least 6 months
The Supreme Court (SC) has laid the rules in the issuance of warrants and related orders in connection with the enforcement of the Cybercrime Prevention Act of 2012.
In a 28-page resolution dated July 3 unanimously approved by the SC magistrates, the High Court stated that the rules on warrants and orders involve “the preservation, disclosure, interception, search, seizure, and/or examination, as well as the custody, and destruction of computer data” under RA 10175.
The salient features of the rules of court on cybercrime offenses, as laid down by the SC are:
1.“The criminal actions for violation of Section 4 (Cybercrime offenses) and/or Section 5 (Other offenses), Chapter II of RA 10175, shall be filed before the designated cybercrime court of the province or city where the offense or any of its elements is committed, or where any part of the computer system used is situated, or where any of the damage caused to a natural or juridical person took place, provided that the court where the criminal action is first filed shall acquire jurisdiction to the exclusion of the other courts. All other crimes defined and penalized by the Revised Penal Code, as amended, and other special laws, committed by, through, and with the use of ICT, as provided under Section 6, Chapter II of RA 10175, shall be filed before the regular or other specialized regional trial courts, as the case may be.
2. An application for a warrant under this Rule concerning a violation of Section 4 (Cybercrime Offenses) and/or Section 5 (Other Offenses), Chapter II of RA 10175 shall be filed by the law enforcement authorities before any of the designated cybercrime courts of the province or the city where the offense or any of its elements has been committed, is being committed, or is about to be committed, or where any part of the computer system used is situated, or where any of the damage caused to a natural or juridical person took place. However, the cybercrime courts in Quezon City, the City of Manila, Makati City, Pasig City, Cebu City, Iloilo City, Davao City and Cagayan De Oro City shall have the special authority to act on applications and issue warrants which shall be enforceable nationwide and outside the Philippines.
3. On the other hand, an application for a warrant under this Rule for violation of Section 6, Chapter II of RA 10175 (all crimes defined and penalized by the Revised Penal Code, as amended, and other special laws, if committed by, through, and with the use of ICT) shall be filed by the law enforcement authorities with the regular or other specialized regional trial courts, as the case may be, within its territorial jurisdiction in the places above-described.
4. Once a criminal action is instituted, a motion to quash and other incidents that relate to the warrant shall be heard and resolved by the court that subsequently acquired jurisdiction over the criminal action. The prosecution has the duty to move for the transmittal of the records, as well as the transfer of the items’ custody to the latter court.
5. “Before issuing a warrant, the judge must personally examine in the form of searching questions and answers, in writing and under oath, the applicant and the witnesses he may produce, on facts personally known to them and attach to the record their sworn statements, together with the judicial affidavits submitted.
6. Any warrant issued under this Rule shall only be effective for the length of time as determined by the court, which shall not exceed a period of ten (10) days from its issuance. The court issuing the warrant may, upon motion, extend its effectivity based only on justifiable reasons for a period not exceeding ten (10) days from the expiration of the original period
7. Failure to timely file the returns for any of the issued warrants under this Rule or to duly turn-over to the court’s custody any of the items disclosed, intercepted, searched, seized, and/or examined as prescribed hereunder, shall subject the responsible law enforcement authorities to an action for contempt, which procedures shall be governed by Rule 71 of the Rules of Civil Procedure, insofar as they are applicable
8. Pursuant to Section 20, Chapter IV of RA 10175, failure to comply with the provisions of Chapter IV, specifically the orders from law enforcement authorities, shall be punished as a violation of Presidential Decree No. 1829, entitled ‘Penalizing Obstruction Of Apprehension And Prosecution Of Criminal Offenders.’ The criminal charge for obstruction of justice shall be filed before the designated cybercrime court that has jurisdiction over the place where the non-compliance was committed.
9. For persons or service providers situated outside of the Philippines, service of warrants and/or other court processes shall be coursed through the Department of Justice -Office of Cybercrime, in line with all relevant international instruments and/or agreements on the matter
10. Pursuant to Section 13, Chapter IV of RA 10175, the integrity of traffic data and subscriber’s information shall be kept, retained, and preserved by a service provider for a minimum period of six ( 6) months from the date of the transaction. On the other hand, content data shall be 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 that is preserved, transmitted or stored by a service provider is used as evidence in a case, the receipt by the service provider of a copy of the transmittal document to the Office of the Prosecutor shall be deemed a notification to preserve the computer data until the final termination of the case and/or as ordered by the court, as the case maybe. The service provider ordered to preserve computer data shall keep the order and its compliance therewith confidential.
11.“Pursuant to Section 14, Chapter IV of RA 10175, law enforcement authorities, upon securing a Warrant to Disclose Computer Data (WDCD) under this Rule, shall issue an order requiring any person or service provider to disclose or submit subscriber’s information, traffic data or relevant data in his/her or its possession or control within seventy-two (72) hours from receipt of the order in relation to a valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the purpose of investigation. Section 4.2. Warrant to Disclose Computer Data (WDCD). -A WDCD is an order in writing issued in the name of the People of the Philippines, signed by a judge, upon application of law enforcement authorities, authorizing the latter to issue an order to disclose and accordingly, require any person or service provider to disclose or submit subscriber’s information, traffic data, or relevant data in his/her or its possession or control. Section 4.3. Contents of Application for a WDCD.
12. If the judge is satisfied that there is probable cause to believe that the facts upon which the application for WDCD exists, he/she shall issue the WDCD.
13. Within 48 hours from implementation or after the expiration of the effectivity of the WDCD, whichever comes first, the authorized law enforcement officer shall submit a return on the WDCD to the court that issued it and simultaneously turn over the custody of the disclosed computer data or subscriber’s information thereto. It is the duty of the issuing judge to ascertain if the return has been made, and if none, to summon the law enforcement officer to whom the WDCD was issued and require him to explain why no return was made, without prejudice to any action for contempt as provided under Section 2.6 of this Rule.
14. “Law enforcement authorities are allowed to retain a copy of the disclosed computer data or subscriber’s information subject of the WDCD which may be utilized for case build-up or preliminary investigation purposes, without the need of any court intervention; Provided, that the details thereof are kept strictly confidential and that the retained copy shall be labelled as such. The retained copy shall be turned over upon the filing of a criminal action involving the disclosed computer data or subscriber’s information to the court where such action has been instituted, or if no criminal action has been filed, upon order of the issuing court …. Upon its turn-over, the retained copy shall always be kept, destroyed, and/or returned together with the computer data or subscriber’s information that was originally turned over to the issuing court under the first paragraph of this Section.
15. Non-compliance with the order to disclose issued by law enforcement authorities shall be deemed non-compliance with the WDCD on which the said order is based, and shall likewise give rise to an action for contempt.”
16. A Warrant to Search, Seize and Examine Computer Data (WSSECD) is an order in writing issued in the name of the People of the Philippines, signed by a judge, upon application of law enforcement authorities, authorizing the latter to search the particular place for items to be seized and/ or examined. The verified application for a WSSECD, as well as the supporting affidavits, shall state the essential facts similar to those in Section 4.3 of this Rule, except that the subject matter is the computer data sought to be searched, seized, and examined, and all other items related thereto. In addition, the application shall contain an explanation of the search and seizure strategy to be implemented, including a projection of whether or not an off-site or on-site search will be conducted, taking into account the nature of the computer data involved, the computer or computer system’s security features, and/or other relevant circumstances, if such information is available.
17. f the judge is satisfied that there is probable cause to believe that the facts upon which the application for WSSECD exists, he shall issue the WSSECD.”
The SC said these guidelines would supplement the Rules of Criminal Procedure on the preliminary investigation and all stages of the prosecution of criminal action involving violations of RA 10175 with the use of information and communications technologies (ICT).
All crimes enumerated in RA 10175 are cognizable by the regional trial courts (RTCs) in the country and those courts specifically designated as “cybercrime courts.”
The Cybercrime Prevention Act of 2012, also known as Republic Act No. 10175, aims to address legal issues concerning internet usage and online interactions in the Philippines.
Among the crimes punishable under RA 10175 are libel, cybersex, child pornography, and offenses against the confidentiality, integrity and availability of computer data and systems like illegal access, illegal interception, data interference, system interference, misuse of devices, cyber-squatting, computer related fraud, computer-related Identity theft, and unsolicited commercial communications. (PNA)