ROOT ACCESS
Rick Bahague
Bulatlat.com
Halaw sa “Communications surveillance in the Philippines: Laws and the struggle for the right to privacy” na bahagi ng GIS Watch 2014 hinggil sa “Communications Surveillance in the Digital Age” ang ROOT ACCESS ngayon. Ang Global Information Society Report ay inilunsad noong September 4 sa okasyon ng Internet Governance Forum sa Turkey.
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Introduction
The Philippines has been crowned the “texting capital of the world” the “social networking capital of the world”, and its financial district is ranked as the “selfiest city of the world”. Data is voluntarily uploaded and shared by its “netizens” on social media networks through mobile and landline networks and is a gold mine for any state surveillance activities. While fixed telephone subscription is almost non-existent, with a telephone density of four subscribers for every 100 inhabitants, mobile has emerged as the main communication tool using technology. Its 106.5 million mobile subscribers sent two billion text messages daily last year.
The digital divide has, however, plagued the country even after the deregulation of the telecommunications industry. The Philippines is ranked 98th in the world on the Information and Communications Technology Development Index (IDI), with the lowest score compared to its Asian neighbours.
There are two monopolies controlling the telecommunications industry in the country: Globe Telecoms and Philippine Long Distance Telephone (PLDT). Telecommunications infrastructure is under the control of corporations. Government communications and transactions have to pass through this private network infrastructure, which is a concern for sensitive information. Because of this, most state surveillance activities would require some cooperation from any of the telecoms monopolies. In fact, the controversial “Hello Garci” wiretapping incident, which will be the focus of this report, was allegedly accomplished with the facilitation of one of their personnel.
Furthermore, the Philippines has been a long-time ally of the United States (US), being a former colony. Various agreements that allow the US Armed Forces to use local resources for military exercises, to strategically position their weapons, and for mass surveillance activities are in place. Edward Snowden revealed in March that the MYSTIC surveillance programme run by the US National Security Agency (NSA) monitors local telcos and “scrapes mobile networks for so-called metadata – information that reveals the time, source, and destination of calls.”
While other governments in countries like Brazil and Germany protested the unlawful surveillance by the NSA, Philippine President Benigno Simeon “Noynoy” Aquino III is not even familiar with the incident and has approved another agreement with the US on enhanced defence cooperation, which will open up more surveillance activities.
There are several policies governing surveillance, such as the Anti-Wiretapping Law (AWA), Cybercrime Law, Data Retention Law, Human Security Act (HSA), and E Commerce Act. In addition, the National Telecommunications Commission has a standing Memorandum Circular for the retention of data by telecommunications companies.
The “Hello Garci” wiretapping incident
It would take an alleged taped conversation of former President Arroyo during the 2004 elections to realise that communications surveillance is happening in this country.
After the ouster of President Joseph Estrada in 2011, Arroyo, then vice-president, assumed office. Arroyo is perceived to be the most corrupt president of the republic. IBON Foundation, a local think tank, estimated that PHP 7.3 billion (USD 181 million) of public funds were lost during her seven years in power. In 2011, she would be charged with electoral fraud and plunder. Among the popular evidence of her involvement in rigging the 2004 presidential election was a wiretapped conversation with an election commissioner, which came to be known as the “Hello Garci Scandal”.
A complete transcript of the wiretapped conversation and a recording of the full conversation are available on the website of the Philippine Center for Investigative Journalism (PCIJ). In this transcript, Arroyo called Commission on Elections (COMELEC) Commissioner Virgilio Garcillano (Garci) several times to ensure a lead of no less than one million votes against the popular rival Fernando Poe Jr. in the presidential race. She also made sure that documents to support this lead were consistent. In one conversation, she asked for the statement of votes (individual summary of votes from towns and municipalities) to make them consistent with the certificate of canvass (consolidated votes in the province).
The Hello Garci wiretapping incident was investigated by the Philippine Senate. It turns out that a military intelligence operation known as Project Lighthouse supervised the wiretapping of Garci and other individuals in the opposition. The Intelligence Services of the Armed Forces of the Philippines (ISAFP) working with personnel of a telco network made the wiretapping possible.
The Hello Garci scandal exposed the manipulation of the most sacred right of the people in a democracy, the election. Furthermore, it also showed the current extent of communication surveillance performed by state forces.
Surveillance on social movements
The Philippines has a vibrant protest and social movement. In 2001, technology played an important role in the ouster of President Joseph Estrada over allegations of corruption. TXTPower, a group composed of mobile subscribers, was active in the use of text messaging during the “Oust Erap Campaign” of various sectors (“Erap” is Estrada’s nickname). It would also later launch a similar initiative against Arroyo.
If recent reports are to be believed, the current Aquino administration has purchased PHP 135 million (USD 3 million) worth of high-end surveillance equipment to spy on its critics. This will be used by the ISAFP, which is alarming for social activists. ISAFP is the same agency that spearheaded the “Hello Garci” wiretapping incident. It is now common activist practice that other than the usual personal security orientation, a discussion on information security is held so that they can take precautions.
This year, the Supreme Court nullified the real-time collection of data provision in the Cybercrime Act. However, libel, the most contested provision of the Act, which stifles freedom of expression, was upheld as within the frames of the constitution.
Violating the constitution and international norms
Wiretapping is a form of communications surveillance. The Philippines does not lack laws prohibiting and regulating it. The country’s AWA and HSA are starting points for defining the legitimacy, adequacy and necessity of surveillance. Both laws also have strict requirements for enforcement officers, which include authorisation from a judicial authority in the conduct of surveillance, due process and user notification. Moreover, any unauthorised surveillance is penalised with 10 to 12 years of imprisonment in the HSA.
While the Hello Garci incident exposed the rotten and corrupt system of the Philippine elections, it also demonstrated blatant disregard of the right to privacy and the 13 International Principles on the Application of Human Rights to Communications Surveillance. It was conducted without court permission, due process or user notification, and revealed that telco companies and state authorities were allegedly working together. Until now, the intention of the wiretapping of Commissioner Garcillano, which caught former President Arroyo by chance, is unclear.
Even with existing laws legitimising communications surveillance, the practice remains problematic. The HSA, AWA and Cybercrime Act are widely opposed to too much power being given to the state. While judicial authority is required by these laws, opposition is still strong due to the doubtful impartiality of courts in issuing surveillance permissions.
Public oversight has yet to be seen in the implementation of the HSA. The law prescribes a Grievance Committee composed of the Ombudsman, the Solicitor General, and the undersecretary of the Department of Justice. The Committee is tasked to receive, investigate and evaluate complaints against the police and other state forces regarding the implementation of the law. An Oversight Committee, composed of senators and members of Congress, has also yet to publish reports on its oversight functions.
Lack of integrity of communications and systems
“Hello Garci” was the first proof that the state and monopoly telcos could be working together to track citizens. It has created awareness among the general public that telcos and the government can track calls and text messages without court permission and user notification.
In the case of the “Hello Garci” incident, a special model of phone was used to receive calls diverted to it by the telco for recording.
Furthermore, a memorandum circular from the National Telecommunication Commission (NTC), the regulatory body overseeing telco monopolies, allows storage of voice and non-voice data supposedly to serve as reference for consumer complaints. While intended for prosecution of consumer complaints, a similar section on real-time traffic monitoring in the Cybercrime Act was ruled as unconstitutional by the Supreme Court.
The Philippines is part of the NSA’s MYSTIC and PRISM surveillance programmes
The country has more than a hundred years of being tied to the NSA in the US. In the early 1900s, in the great Philippine-American War, surveillance techniques were already employed. To defeat the Filipino guerrillas fighting for independence, the US army “created five integrated security agencies, a centralised telephone network, fingerprinting, photographic identification and index of police files of 200,000 alphabetised file cards with the means to collect, retrieve and analyse a vast amount of intelligence.”
Last March, Edward Snowden revealed that all text messages and calls passing through the two telco monopolies in the Philippines are captured by the NSA. With more than 100 million users of mobile telephones, and a vibrant protest movement, which is being demonised, the US has all its reasons to implement mass surveillance in the country. In 2013, Snowden also said that the NSA has an established listening post in Manila to conduct mass surveillance against other Asian countries.
Recently, a new agreement with the US was signed by the Department of Foreign Affairs. The EDCA allows US weapons to be based in the country. The US has a rotating military presence through its frequent military exercises allowed by the Visiting Forces Agreement (VFA). The EDCA has been studied by a group of computer professionals and was found to be “an invitation for unregulated communication and surveillance” due to its provision of allowing US troops to use the full radio spectrum, which is supposedly regulated by the National Telecommunications Commission.
Conclusions
The Philippines has established laws on communications surveillance since 1969. Its constitution also regards privacy as a fundamental right of its citizens. In the “Hello Garci” scandal, where former President Arroyo was caught as she allegedly instructed Commissioner Virgilio Garcillano – who was being wiretapped by the intelligence agency of the armed forces – to rig the 2004 presidential election in her favour, the right to privacy and the principles of judicial authority, due process and user notification were not applied. This also verified the fears of activists and privacy advocates on the possible connivance between telcos and state forces to track electronic communications.
Furthermore, the country has a long history of being part of NSA spy programmes. Its previous and present administrations have been subservient to US interests, which includes allowing the establishment of listening posts by the NSA, the capture of massive amounts of metadata on mobile networks, and the importing of surveillance equipment through the EDCA and VFA.
However, Filipino netizens are also aware of their political strength, once mobilised. They were active in the ouster of two previous presidents and have shown their capacities again in the 2013 Million People March against the corrupt use of public funds by the current Aquino regime. It did not take long before they realised that the state and the intervention of US had been tracking their activities online and offline. 
