CYBERCRIME: LOCATING AND PENALIZING THE DIGITAL OFFENDER

(part 3)

An example of this is child pornography, which is proscribed in most jurisdictions. That the pornographic images are digital i.e. stored in a computer, does not alter the basic elements of the crime. The basic change in this case is merely procedural in character, whether or not digital evidence is sufficient to produce a conviction. Sec. 33 (b) of the E-Commerce Act, insofar as penalized intellectual property violations with the use of a computer, belongs to this category. In this respect, O’Neill’s observation holds, inter alia:

Cybercrime is unique only to the extent that it is often a more efficient means by which to commit certain types of offenses. In particular, the Internet fosters certain efficiencies that may make detection and subsequent prosecution considerably more difficult. Identity on the Internet, for example, is more easily cloaked, thus making detection more challenging. Computers also may increase the expected return from criminal conduct and decrease the fixed costs of undertaking the criminal activity, thereby making cybercrime more attractive to potential offenders.
It would appear, therefore, that the conceptual blur occurs between the confines of the second category, where the computer is the subject of the offense. The core criminal activity which clearly comes into the fore in this are is “hacking” or “cracking” Under Philippine law, the set of acts constitutive of either are enumerated:

a) Hacking or cracking which 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 computer 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 (P100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years;

Broken down into elements, two crimes are provided for under the said provision of law, i.e.: i) unauthorized access ii) any access without the knowledge or consent of the owner resulting in the specified damage or injury.

On the one hand, the phrase “unauthorized access” as it appears in Sec. 33(a) of the E-Commerce Act has been subject to much controversy. Kerr observes that:

What does it mean to "access" a computer? Under what circumstances does access become "unauthorized?" The few courts that have reached these questions have offered inconsistent interpretations. Commentators have ignored these questions entirely. The result is an odd situation in which nearly every Anglo-American jurisdiction has an unauthorized access statute that carries serious felony penalties, but no one seems to know what these new laws cover. (emphasis supplied)


One might as well include Philippine jurisdiction in the latter category. No formal definition has been provided in the E-Commerce Act itself. The hiatus cannot be filled with “persuasive” American jurisprudence, since the state decisions have themselves been the source of much confusion.

-by Nestor Gadrinab