Disclaimer: This is just a work
of a law student in compliance with his subject in Technology and the Law. This
is not intended to give any legal advice or whatsoever but for compliance and
classroom discussion purposes. This may not serve for any other purpose as
claimed herein and warrants nothing regarding the efficiency of the
information.
Aliens Defacing Ph Web are Beating the Rap
The act of intercepting, defacing and/or interrupting
website, which happened to one of our primer universities, is violative of the
Electronic Commerce Act of 2000, which provides hacking, cracking
and piracy as a crime. Republic Act 8792 Sec.
33 (a) provides that hacking or cracking is the
unauthorized access in a computer system including the introduction of computer
viruses, stimulated to alter, corrupt, steal, or destroy existing design, which in effect cause
break-ins or interruption to computer system, which
is punishable by a fine from 100 thousand to maximum parallel to the damage
suffered by the owner with imprisonment from 6 months to 3 years.
The intent of the framers of
the law is to give protection over the interest of the public in general, as
the creation of technology and internet advance in the market across the globe
and to provide punishment for those who are to violate. The act of foreign
internationals in defacing or interfering with our computer systems or website in the absence
of our knowledge and consent is a clear defiance of our law and should never be
condoned but condemn by our government. The law is clear where it does not exclude
foreign hackers. Ergo, a foreigner may be subjected upon the commission of this
act. The
law and the Philippine Internet community condemn the action of the hacker or hackers for it
impairs the legal rights of the owner to his intellectual property or creation.
Hacking per se is not immoral or unlawful for we need hackers to test the
viability and strength of our computer
system. However, hacking should never be misunderstood by the contemporary
internet genius for it might bring
confusion and harm to the entire Internet industry.
Given the fact that foreign
nationals may be subjected to this law, a more important issue will arise, as
to whether or not our court could have a control over the person of the foreign
nationals and as to how would you make them liable?
To deal with this matter, we
have to go back with the issue of jurisdiction. Jurisdiction as defined is the
power of the court to try cases. The court cannot however, enforce a judgment
against a person or thing over which it has no authority. “Traditionally, a court can gain personal
jurisdiction over a party only if the party has a connection to the geographic
area in which the court sits.” http://legal-dictionary.thefreedictionary.com/jurisdiction Thus, the principle of territoriality is a
ground to establish personal jurisdiction. There would be no question if the
defendant is of the same country. However, trouble lies if the parties involved
are of different states, such as the case above.
There is no Supreme Court
decision yet as to this case. It is also difficult to prove the liability of
the foreign hackers for it involves the question of personal jurisdiction.
Nonetheless, according to Henry Perritt, Dean of Chicago-Kent Law School, “to
be effective, jurisdiction over foreign nationals or corporations must rely on
international treaties or reciprocal enforcement agreements. The agreements
often look at the contacts that the foreign entity has within the sovereign
district in order to determine if the sovereign’s interest in the matter is
legitimate.” (http://cyber.law.harvard.edu/ecommerce/disputes.html) Since our country has been a signatory to a Convention on
Cybercrime, which goal is to “harmonize laws against malicious hacking, virus
writing, fraud and child pornography on the net.” (BBC News. (2000, December 18). Cybercrime Treaty Condemned. Retrieved January 21, 2007 from
http://news.bbc.co.uk/1/hi/sci/tech/1072580.stm.) Our sovereign state enjoys the right as inherent to
it to invoke its right internationally to a court of competent jurisdiction
regarding cybercrimes. However, if the party involved is not a signatory to
this treaty no right can be enforced against him. It is then the vision of this
convention that all countries may cooperate in this effect so that the evil sought to be avoided must be
prevented. If not, this wrongful act will perpetuate further, where hackers
seem to enjoy their wrong doings without fear of its consequences for they can
find refuge behind the skirt of its mother nation.