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Computer Hacking and Cyber Crime Law Essay

COMPUTER HACKING AND CYBER CRIME LAW
History of Hacking

According to (Clifford R.D. 2006) a cracker or cracking is to “gain unauthorized access to a computer in order to commit another crime such as destroying information contained in that system”. These subgroups may also be defined by the legal status of their activities. Eric S. Raymond (author of The New Hacker’s Dictionary) advocates that members of the computer underground should be called crackers. Yet, those people see themselves as hackers and even try to include the views of Raymond in what they see as one wider hacker culture, a view harshly rejected by Raymond himself. Instead of a hacker/cracker dichotomy, they give more emphasis to a spectrum of different categories, such as white hat, grey hat, black hat and script kiddie. World Of Hacking

Hacking is the practice of modifying the features of a system, in order to accomplish a goal outside of the creator’s original purpose. The person who is consistently engaging in hacking activities, and has accepted hacking as a lifestyle and philosophy of their choice, is called a hacker. Modifying the features of a system.

Gaining an unauthorized access to a computer system.
Breaks into a system security.
Refers to the hobby/profession of working with computers.
It also about learning how a system works and how to make it do things it wasn’t designed to do, or you haven’t got the privileges to do. Hacker

A hacker is someone who seeks and exploits weaknesses in a computer system or computer network. Hackers may be motivated by a multitude of reasons, such as profit, protest, or challenge. The subculture that has evolved around hackers is often referred to as the computer underground and is now a known community. White Hats – good

Gray hats – good or bad
Black hats – bad
Script kiddie
A script kiddie (also known as a skid or skiddie) is a non-expert who breaks into computer systems by using pre-packaged automated tools written by others, usually with little understanding of the underlying concept—hence the term script (i.e. a prearranged plan or set of activities) kiddie (i.e. kid, child—an individual lacking knowledge and experience, immature). Blue hat

A blue hat hacker is someone outside computer security consulting firms who is used to bug test a system prior to its launch, looking for exploits so they can be closed. Microsoft also uses the term Blue Hat to represent a series of security briefing events. Hacker Code Of Ethics

Levy (1984) suggests that there is a “code of ethics” for hacking which, though not pasted on the walls, is in the air: Access to Computers – and anything which might teach you something about the way the world works – should be unlimited and total. Always yield to the Hands-On Imperative!

All information should be free.
Mistrust Authority – Promote Decentralization.
Hackers should be judged by their hacking, not bogus criteria such as degrees, age, race, or position. You can create art and beauty on a computer.
Computers can change your life for the better.
CYBER CRIME LAW
Senator Angara is defined as any illegal and criminal act activity committed on the internet. State Policy Regarding Cyber Crimes
The State Recognize..

1. The vital role of information and communication industries such as content production, telecommunication, broadcasting, electronic commerce, and data processing, in the nation’s overall social and economic development. 2. The importance of providing an environment conducive to the development, acceleration, and rational application and exploitation of information and communication technology to attain free, easy and intelligible access to exchange and/or delivery of information. 3. The need to protect and safeguard the integrity of computer, computer and communication systems, network, and databases and the confidentiality, integrity, and availability of information and data stored therein, from all forms of misuse, abuse, and illegal access by making punishable under the law such conduct or conducts. Cyber Crimes Offenses

1. Offenses against the confidentiality, integrity and availability of computer data and systems. A. Illegal Access
– The intentional access to the whole or any part of a computer system without right. Element of Computer System

There must be a device a group of interconnected or related devices. At least one of the devices performs automatic processing of data pursuant to a program. The device need NOT be connected in a network as long as it consists of both hardware and software and have input, output and storage facilities. Element of the offense of illegal Access

1.There must be an intentional access in whole or any part of a computer system. 2. The person who attempts, or is accessing, or had already access the data has no right to access to the system. “An Authorized person may not be authorized.”

B. Illegal Interception
Interception – refers to the listening to, recording, monitoring or surveillance of the content of communication. Elements of Illegal Interception
1. It must be intentional.
2. It must be by technical means.
3. The person involved is without any right to do the intercept. 4. The transmission of computer data to, from, or within a computer system is non-public. 5. It must not fall in any exemption.
C. Data Interference
Intentional or reckless alteration of computer data without right. C.System Interference
Intentional or reckless hindering without the right of the functioning of a computer system by inputting, transmitting, deleting or altering computer data or program. MisUse of Devices
The use, production, sale, procurement, importation, distribution, or otherwise making available, without right, of: – device, including a computer program, designed or adapted primarily for the purpose of committing any of then offenses under this act; Or -a computer password, access code, or similar data by which the whole or any part of a computer system is capable of being accessed with intent that it be used for the purpose of committing any of the offenses under this Act; CYBERSEX AND CHILD PORNOGRAPHY

CYBERSEX
-Any person who establishes, maintains or controls, directly or indirectly any operation for sexual activity or arousal with the aid of or through the use of a computer system, for a favor or consideration. Child Pornography

-refers to pornography depicting sexually explicit activities involving a child. It may use a variety of media, including writings, magazines, photos, sculpture, drawing, cartoon, painting, animation, sound recording, film video, and video games. Child pornography is divided into simulated child pornography and pornography which was produced with direct involvement of the child (also known as Child Abuse Images.) For a person to be guilty of cybersex as defined by the cybercrime law, all the following elements must be present: There must be an operation for sexual activity or arousal;

The sexual activity or arousal is done with the aid of or through the use of a computer system; The activity is done for a favor or consideration.

The operation is/ was established, maintained or controlled by a person directly or indirectly. From the above, element no.3 should NOT have been included by our law makers. What is the Penalty for this Crime?

Any person found guilty of the cybercrime of cybersex shall be punished with imprisonment of prison mayor or a fine at least Two Hundred Thousand Pesos ( Php 200,000.00) But not exceeding One Million Pesos (1,000,000.00) or both. Sec. 5 Other Offenses:

The following acts shall also constitute an offense:
1. Aiding or abetting in the Commission of Cybercrime– Any person who willfully abets or aids in the commission of any of the offenses enumerated
in this Act shall be held liable. 2. Attempt in the Commission of Cybercrime– A prosecution who willfully attempts to commit any offenses enumerated in this Act shall be held liable. Sec. 6 Liability under other Laws

A prosecution under this Act shall be w/o prejudice to any liability for violation Of the Revised Penal Code, as amended or special laws
COMPUTER-RELATED OFFENSES:
Computer-related forgery
Computer-related Fraud
Unsolicited Commercial Communications
1.) Computer-related Forgery
-(a) the intentional input, alteration, or deletion of any computer data w/o right resulting in inauthentic data w/ the intent that it be considered or acted upon for legal purposes as if it were authentic, regardless, whether or not the data is directly readable and intelligible; (b) the act of knowingly using computer data which is the product of computer-related forgery as defined herein, for the purpose of perpetuating a fraudulent or dishonest design. 2.) A pe rson is guilty of forgery if:

(a)With purpose to defraud or injure anyone; OR
(b) With knowledge that he is facilitating a fraud or injury to be perpetrated by anyone; the actor: 1.) alters any writings of another without his authority;

2.) makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize the act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or 3.) utters any writing which he knows to be forged in a manner specified in the revised penal code. Elements of Computer related Forgery.

First type of Offense “ACTIVE COMPUTER RELATED FORGERY”
(a) There must be an intentional input, alteration, or deletion of any computer data without right; (b) The result is an inauthentic data;
(c) The intent is to use the inauthentic data to be considered or acted upon as if it is authentic Second type of Offense “PASSIVE COMPUTER RELATED FORGERY
a) There must be an existing inauthentic data brought about by the elements of ACTIVE computer-related forgery. b) Knowingly acting on the inauthentic data for the purpose of perpetuating a fraudulent or dishonest design. 2.) Computer Related Fraud

If A had a loan from his cooperative and the only evidence of such loan is the records stored in the cooperative’s computer system, A with intent to procure economic benefit, changed the source code of the system’s program so that on an particular date, the system will hang and immediately cause the malfunctioning of the said system. Thus, A can easily deny that he still has an obligation to the cooperative. 3.) Unsolicited Commercial Communications

-The transmission of commercial electronic communication with the use of a computer system which seek to advertise, sell, or offer for sale products and services are prohibited unless a. There is a prior affirmative consent from the recipient; or b. The following conditions are present:

i. The commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject receipt of further commercial electronic messages (‘opt-out’) from the same source;

ii. The commercial electronic communication does not purposely disguise the source of the electronic message; and
iii. The commercial electronic communication does not purposely include misleading information in any part of the message in order to induce in the recipients to read the message.

BLOG
Blog can also be used as a verb, meaning to maintain or add content WHAT IS BLOGGING ?
– A new form of expression where in you express your thoughts and ideas about a specific topic . BLOGGERS :
Tina Hamilton is a veteran journalist , a social media guru and a aspiring blogger who enjoys covering a wide range of topics. She currently works with a professional SEO consultant in her attempt to gain an education in the industry John Charles Edward “Carlos” Pamintuan Celdran also known as CARLOS CELDRAN”

He is truly proud of being a Filipino as his blog Celdrantours tries to change how the world sees Manila. Through his blogs. INTRODUCTION

With the emergence and popularity of blogging as a new form of expression, the coverage of defamation laws has extended to cyberspace. The consequences is that, people who are adversely affected by writings in this medium is bringing lawsuits to protect their name and reputation. While the Philippine Constitution protects bloggers’ right to free speech and expression, this does not give them unfettered license to write to the detriment of others. This Chapter discusses the person’s right to free speech and expression while respecting the person’s honor. This chapter aims to equip the reader relevant knowledge to supplement his skills in determining whether or not a certain form of expression is within the scope guaranteed by the Constitution. Bases of the Guaranteed of the Right of Freedom of Expression Two (2) Philosophical Bases for the Guarantee of this Right

Discovery of truth
For self-government
In the case of US vs. Bustos (37 Phil. 731), in which the defendants were charged with libel of a public officials for statements made Mr. Justice Malcolm, writing the opinion of the Court, said: “Public policy, the welfare of society, and the orderly administration of government, have demanded protection for public opinion. The inevitable and incontestable result has been the development and adaptation of the doctrine of privilege.” `“A public official must NOT be too thin-skinned with reference to comment upon his official acts.” Scope of the Freedom of Expression

Article III, Section 4 of the Phil. Constitution says:
“No law shall be passed abridging the freedom speech, of expression, or the press, or the right of the people peaceably to assemble and petition the
Government for redress of grievances.”
Article III, Section 18(1) of the Phil. Constitution says:
“No person shall be detained solely by reason of his political beliefs and aspirations.” Question:
But how can we determine the scope of this expression?

According to Justice Isagani Cruz, an authority in Constitutional law, the ideas that may be expressed under this freedom are NOT confined only to those that are sympathetic or acceptable to the majority. To be really meaningful, it should permit the articulation of even the unorthodox view, though it be unfriendly to or mocked by others, or “induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Justice Holmes said that this right exists NOT so much for the thought that AGREES with us as for the thought that we detest. From this comes the famous statement from Voltaire: Voltaire

“I may NOT agree with what you say, but I will defend to the dead your right to say it”. Freedom from prior restraint or censorship

Prior means official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Freedom from subsequent punishment

The freedom from prior restraint would set at naught if the citizen would hesitate to speak for fear of vengeance that he might suffer against the officials he criticized. Limitations on the Guarantee

Case:
Tulfo wrote an article in his column in PDI ‘On Target’ on October 13, 1989, stating that the Supreme Court rendered an idiotic decision in legalizing checkpoints, and again on October 16, 1989, where he called the SC stupid and “sangkatutak na mga bobo justices of the Philippine Supreme Court”. There are 2 kinds of publications which can be punished for contempt: 1.Those whose object is to affect the decision in a pending case 2.Whose object is to bring courts to discredit

Standards for allowable subsequent punishment
TEST

CRITERION

1.Dangerous Tendency
Test
There should be a RATIONAL CONNECTION between the speech and the evil apprehend

2.Clear and Present Danger
Test

There should be a clear and present danger that the words when used under such circumstances are of such a nature as to create a CLEAR AND PRESENT DANGER that they will bring about the substantive evils that the State has a right to prevent

3.Balancing of Interest
Test

The courts should BALANCE the PUBLIC INTEREST served by legislation on one hand and the FREEDOM OF SPEECH (or any other constitutional right) on the other. The courts will then decide where the greater weight should be placed

LIBEL
A legal term for something written which is harmful to a persons reputation. – is a defamation committed by means of writing, printing, lithography, engraving, radio, phonography, painting, theatrical exhibition, cinematographic exhibition, or any similar means. Libel is punished by our Revised Penal Code which states:

Art. 353. Definition of Libel.
– A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for Publicity. – Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: 1.A private communication made by any person to another in the performance of any legal, moral or social duty; and 2.A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or any of statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions Art. 355. Libel means by writings or similar means.

– A libel committed by means of writing, printing, lithography, engraving, radio, phonography, painting, theatrical exhibitions, cinematographic exhibition, or any similar means, shall be punished by prison correctional in its minimum and medium periods or a fine ranging from 200 to 6,000, or both, in addition to the civil action which may be brought by the offended party. DefamationElements of Defamation

For a person to be convicted of defamation, the following elements should be present. 1. There must be an imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance. 2. The imputation must be made publicly.

3. It must be malicious.
4. The imputation must be directed at a natural or juridical person, or one who is dead. 5. The imputation must tend to cause the dishonor, discredit, or contempt of the person defamed. Absolute Privileged Communication

To illustrate, let us recall the privileged speech delivered by Sen. Revilla in the Senate last 2009, in that instance, he called Dr. Hayden Kho “Maniac”. Buwang itong doctor na ito. Baliw, Mr. President,” he further said. Qualified or Conditionally Privileged Communications

Under this privilege, the freedom of the liability for an otherwise defamatory utterance is conditioned on the absence of express malice or
malice in fact. Thus, in re:Tulfo (supra), notwithstanding the freedom of the press guarantee of the Constitution, the respondent was severely censured because there is malice brought about by a disrespectful language. A good example which will illustrate the absence of malice in rendering fair and true report is the case of GMA Network vs Bustos (G.R. No. 146848 October 17,2006). Interpreting The Libelous Statement

The alleged libelous article must be construed as a whole (Jimenez vs. Reyes, 27 Phil.52) The Meaning given by the writer nor by the offended person is Immaterial. If the libelous statement shall be interpreted by the writer, then the writer can easily escapes by giving an interpretation to the effect that malice is not present. On the other hand. If the offender person is the one who will interpret the libelous article, he can easily imputes malice against the writer to hold him liable. Meaning of Publication

Publications does not mean that the defamatory statement should be published in the newspaper of general circulation, televised in national television, neither by refereed ISI Journal, etc. There is publication when the communication of the defamatory matter is made to some third person or persons( People vs Atencio, Dec 14,1954) Thus, If Juan sent a letter to Pedro which reads: “Pablo is a thief”, this is sufficient publication. ‘ Identification of the Party is Required in the 4thElement

A blind item writer cannot be guilty of libel , as long as the person defamed cannot be identified. Thus, if the blind item states: “The wife of the pound for pound king…” Although the name is not expressly mentioned, the person can be easily identified, so the writer may be liable. General Rule:

Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, Exception:
Except in the following cases: {This is the exemption to the general rule; here malice is NOT presumed} A Private communication made by any person to another in the performance of any legal, moral, or social duty; and A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

Going back to our previous example, if Juan sent a letter to Pedro which reads: “Pablo is a Thief” , it is presumed that that there is MALICE on the part of Juan. It means that the law presumes that Juan is prompted by personal ill-will in making the communication to Pedro. Now, suppose Pablo really is a thief, will the law still presumed malice on the part of Juan? Yes, unless Juan has good intention and justifiable motive in making communication. Thus, If Pedro is looking for a cashier in his department store Juan will be justified in making the communication so that Pedro won’t hire Pablo who applied for the cashier position.

The same holds true if the message was sent through an
e-mail and/or text messages.
Relevance of Knowing the Presumption of Law
If the case falls under the general rule, that is, malice is presumed, it is the writer or the accused who has the burden of proof. Hence, the complainant will NOT be obliged to prove that there is a malice on the part of the accused. The accused will have to produce evidence that his claim against the complainant is true. Do not be confused, the accused is the writer that is why he is being accused of libel because he is the one who wrote the libellous statement. The complainant is the offended party, that is, the person defamed that is why he is the one complaining. If the case falls under the exemption, it is the complainant who has the burden of proof like in the case of GMA Network vs Bustos, wherein Bustos, the complainant failed to prove that there is bad faith or malice on the part of GMA in showing the alleged malicious report. Libel in the Internet

After reading the necessary materials pertaining to an individual’s right to freedom of expression and the libel law, we are now ready to study its application using the internet as its medium. Let us start our study with the following scenario. Libel in the internet or e-libel is within the Scope of Libel Defined in the Revised Penal code The case of Bonifacio vs Jimenez (supra), unfortunately, was misinterpreted by some because they cite this case to support their opinion that e-libel is beyond the ambit of libel provided by the Revised Penal Code. According to them since the SC had dismissed the case, it is already settled that e-libel cannot be punished in our jurisdiction. I beg to disagree. If you will read the full text of the case of bonifacio vs Jimenez, it is very clear that Jimenez did not win the case because of the wrong choice of option.

If Jimenez simply alleged in the information that they are (or at least one of the offended parties) presently residing in the City of Makati at the time of the commission of the offense, that is enough to vest jurisdiction to the RTC-Makati and enable the letter to hear and decide the case on the merits. The case was dismissed because RTC-Makati failed to acquire jurisdiction of the case NOT because there is no e-libel in our country. Another argument is that, “at the time the revised penal code was enacted, there is no internet yet, hence, the legislature could NOT have intended to include internet as a medium. To address this argument let us reproduce the pertinent provision of the libel law regard to this, thus: Art.335.Libel means by writings or similar means.

*A libel committed by means of writing, printing, lithography, engraving, radio, phonagraphy, painting, theatrical exhibit, cinematographic exhibition, or any similar means (big emphasis supplied).


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