Legislators urged: Clarify ‘conflicts’ in child porn law

PLDT and its wireless unit, Smart Communications Inc., are urging lawmakers to amend “conflicting provisions” of Republic Act No. 9775 (or the Anti-Child Pornography Act of 2009) to boost efforts in curtailing online sexual abuse and exploitation of children.

“We want to do more in protecting children on the internet,” lawyer Roy Cecil Ibay, Smart vice president for legal and regulatory affairs and vice president of the Philippine Chamber of Telecom Operators (PCTO), said, adding: “But some provisions in the antichild pornography law are holding us back because they encroach on the rights of citizens and contradict existing laws, particularly RA 10173 (or the Data Privacy Act of 2012) and RA 10175 (or the cybercrime prevention law).”

Section 9 of RA 9775 mandates internet service providers (ISPs) to actively monitor and block material that promotes child porn passing through their servers, and to install software that will filter out these illicit content.

Clashing sections

But in a position paper submitted to the Department of Justice (DOJ), the PLDT Group, along with other PCTO members, cited a sentence in the same section stating: “Nothing in this section may be construed to require an ISP to engage in the monitoring of any user, subscriber or customer or the content of any communication of any such person.”

Traffic data, or information on the message’s origin, destination, route and size, among others, are considered property and, thus, protected against unreasonable searches and seizures under the Bill of Rights, the PLDT Group said.

The Constitution also guarantees privacy of communication, it pointed out.

The PLDT Group finds a compelling argument in the 2014 Disini vs Secretary of Justice case, where the Supreme Court declared as unconstitutional Section 19 of RA 10175 that says “when a computer data is prima facie found to be in violation of the provisions of this act, the DOJ shall issue an order to restrict or block access to such computer data” because it gives the department virtual power to search and seize private data without a judicial warrant.

In their position paper, PLDT and Smart argued that if the justice secretary could not order the blocking of offending computer data without a judicial warrant, private entities such as ISPs, including the PLDT Group, could not be expected to do so.

Proper definition needed

PLDT and Smart also want clarification of the terms “blocking” (as when a subscriber attempts to access a website but is prevented from doing so, which makes it a technical measure intended to restrict access) and “filtering” (as when a subscriber uploads offensive material and telcos are expected to be able to screen and immediately remove it).

They said these responses “reek of all the elements of censorship or prior restraint, which violates the constitutionally guaranteed right to freedom of speech and of expression.”

To drive its point home, the PLDT Group cited the same landmark case (Disini vs Secretary of Justice), where the high court struck down Section 12 of RA 10175, referring to the real-time collection of traffic data by authorities because “the power is virtually limitless, enabling law enforcement agencies to engage in ‘fishing expedition,’ choosing whatever specified communication they want.”

While awaiting the amendment of the antichild pornography law, the PLDT Group said, it was actively blocking domains linked to child porn. It also said it was working out a subscription to Internet Watch Foundation and the National Center for Missing and Exploited Children to further beef up its efforts in protecting children’s welfare.