Handcuffed hookup
One of
the starkest contests of this century comes in bits. Man is now distressed by
just a mouse-click. And even get furious with feuds in virtual hookups. Indeed,
as we look at it, gone are the old days when people fight head-on. Now, with
the booming abilities of the know-how and the underlying advances, basic problems
of man are in jumble. Technology, so to speak, ascends and dynamically
flourishes with us being left tongue-tied. But who are to be blamed when we
ourselves have been a buff with all the glorious convenience and fun that the
Internet could bring. We have continually been an unpaid client of the growing
Virtual Industry that we cannot even take a grasp of. Much, most of us are
clueless of what has been happening in the ins and outs of our Web World. All
because we kept hanging on to the good and amazing things we are experiencing
with that Web World. And when eventually confronted to the uncivil undertaking
in the civilized (I presume) virtual society, we become wary. What are we got
to do then? This leads us to confront another threat that is beginning to loom
large- cyberwar, cybercrime, and the rest of the same animals.
Cybercrime
has been much in the news and print ads lately, from facebook massive phishing
(stealing of passwords from users), to monster botnets (cache of stealing of
information and details of thousands), program manipulation, and now that of
system hacking. A lot of crimes done virtually have been pervasively done by
the so-called uncivilized minds. They should be termed that way so as to make a
good rectification. What they are fond of doing is undoing the good works of
the civilized society. They take advantage of the open borders, unbound scopes,
unlimited leeways, and much of the technological advances of today’s
generation. They can be successful in doing the same, prominent in such a name,
but they are not invincible. We have to take that in mind.
In the
meantime, let us give factual scenarios. Series of news break the silence of
the many regarding the hacking incidents affecting our country, The
Philippines. And these hackers even claimed to come from China which surfaced from the University of the Philippines ’ website asserting as well their
claim over Huangyan
Island China
and the Philippines
regarding the Scarborough Shoal. But this was not the only incident of hacking
that took place, since couple of days from the first strike; Chinese nationals
again hacked but this time, the Department of Budget and Management (DBM), and
other detected attempt and target attacks and site invasion of the Presidential
Communications Development and Strategic Planning Office’s website, the
Official Gazette’s and the Presidential Museum and Library’s. And these hacking series might not be through
yet, we could just presume. And all these uncivilized deeds pointed to Chinese
hackers, as represented by IP addresses assigned to Chinese networks.
These
headlines made a lot of Filipinos; patriotic, sympathetic and pathetic alike,
all clamored for the so-called justice. We might not have a gigantic territory,
or a colossal of manpower, but we are sensitive enough to understand our
plight. And we have E-Commerce Act. More particularly, Section 33 (a) which
says that, “Hacking or crackling refers to unauthorized access into or
interference in a computer system/server or information and communication
system; or any access in order to corrupt, alter, steal, or destroy using a
computer or other similar information and communication devices, without the
knowledge and consent of the owner of the computer or information and
communication system, including the introduction of viruses and the like,
resulting in the corruption, destruction, alteration, theft or loss of
electronic data messages or electronic documents shall be punished by a minimum
fine of One Hundred Thousand pesos (P 100,000.00) and a maximum commensurate to
the damage incurred and a mandatory imprisonment of six (6) months to three (3)
years.”[2] If we look at the
scenarios given, the entire elements amount to so-called hacking. However,
context wise, we might fall short of directly extending our long-arm of
domestic legislation to neighboring sovereign state like China . To
approach this, everything must be set on its right place. Let us get deeper
into the matter.
Are we at the losing end? Definitely not. We should know that most of the countries of today
are becoming, became or become member-states of the standing leg of
international law and an international organization, the United Nations. And
members of which include the Philippines
and China ,
among others. The latter even holds more powerful position as permanent member
of the Big Five of Security Council which has basic functions in maintaining
peace and order and security among countries and so as make binding decisions
regarding the same. In relation to this, series of Conventions have been in
place and passed regarding high time concerns of countries. And one pertains to
the issue on cybercrimes which involves hacking. To name one, The Twelfth
United Nations Congress on Crime Prevention and Criminal Justice[3], which was held on
2010, and that China
has been a standing member thereof, subscribing to the prompt resolution to
Cybercrimes of today from existing and even continually infecting lots of
countries. And as a full member of the United Nations, China is also
governed by the United Nations Charter[4]. It has been
concretely stated in Article 1, the purposes of each member-state in a
nutshell, (a) “To maintain international peace and security, and to that end:
to take effective collective measures for the prevention and removal of threats
to the peace, and for the suppression of acts of aggression or other breaches
of the peace, and to bring about by peaceful means, and in conformity with the
principles of justice and international law, adjustment or settlement of
international disputes or situations which might lead to a breach of the
peace”. And this must be taken in correlation to Article 1 (b) that is, “To
achieve international co-operation in solving international problems of an
economic, social, cultural, or humanitarian character, and in promoting and
encouraging respect for human rights and for fundamental freedoms for all
without distinction as to race, sex, language, or religion.” With all these if
put into mind, will warrant mandatory compliance by China in cooperating for the
resolution of the acts of its Nationals in the so-called hacking. And with these
governing principles and tenets, doubts would really boggled everybody’s mind
why China is still reluctant to sign the necessary Convention on Cybercrime[5] as initiated by the
Council on Europe and joined by non-members like the United States, Japan,
Canada and South Africa. But this does not hinder further drive on prosecuting
the Chinese hackers.
As we all
know, the latest dispute between the Philippines
and China
about Scarborough Shoal is burning like a furnace. And these hacking incidents
just set things ablaze. One aggressive step forward and everything will
explode. Thus, our only remedy is to pacify things. We can go diplomatic
instead. Besides, history dictates the possibility of agreements given the
tested camaraderie relationship between the Philippines
and China
since time immemorial. And two most important of its bilateral agreements
include: Treaty on Mutual Judicial Assistance on Criminal Matters (2000), and
an Extradition Treaty (2001)[6], among others. This
Treaty on Mutual Judicial Assistance on Criminal Matters indeed make ends meet
with regard the divergence in legislation and help speed up prosecution if
coupled with cooperation on both sides. Since, the problem in not efficiently
implementing our own domestic Hacking law is that of national sovereignty,
mutual legal assistance and judicial convergence are two most essential elements
of making that law realized. And because China agreed with our country
regarding this matter in this specific treaty, as a signatory therewith, it is
obliged to conform to the terms as indicated.
It would
not be so hard for China
to conform to this mandate given that domestically, they are also victims at
some point by these uncivilized hackers. Owen Fletcher once wrote that, “China released
a tort law that touches on privacy issues and requires Internet service
providers to take action when an individual is using the network to violate
someone's civil rights.”[7] Too, “China says
cyber hacking is against Chinese law.”[8] With these, and with
all the unhealthy effects of Hacking, it would be a lot easier for us to
propose proper legal conviction to those malefactors in hacking when even China itself also
outcry for its continuing existence. But to do this, we can use our Extradition
Treaty with China
in taking steps for the prosecution of Hackers. This is not easy, we know it.
But nothing is impossible in pursuing justice.
The
current Extradition Treaty[9] between the two states
might not be that explicit in including Cybercrime as one of those extraditable
offenses, but if the purpose of such treaty be controlling, which is, “in
desiring to provide for more effective cooperation between the parties in the
repression of crime on the basis of mutual respect for sovereignty and equality
and mutual benefit..” it would be undeniable to include such crime in the list
if that will be the case. Besides, it is no way for China to protect those hackers
since if that will happen to them, in their territory, the same recourse will
be due for them. More to the point, this proper legal action by our country,
the Philippines , is just a
prosecution stage, and that cooperation is what we only ask from China to make
it realized, and nothing beyond it. Besides further, an uncivilized hacker can
never be an asset to one’s country. Hence, China would not have to be vexed
about extraditing those nationals once traced.
All these
things in mind, setting aside other attending circumstances between China and the Philippines , prosecuting a hacker is
not anymore far-fetched. We have our laws, the E-Commerce Act inter alia, an international
cooperation (have faith in it), good conscience (not just to get even or so), and
a prompt and proper legal course of action; we are in square off then.
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