MEMORANDUM

To: Police Department Officers

From: Legal Officer

Date: May 30, 2020

Re: Omnivore, a computer program in a form of a spam designed to store or record site
visits or livestreaming on child pornography.

Legal Dispute

Does the use of omnivore violate the right to privacy under the constitution? Can the
arrests subsequent to its usage be considered valid without warrant?

Facts

Omnivore is a computer program that circulates widely on the internet and appears as
a spam. Omnivore, downloaded is designed to use cookies to store or record site visits or
livestreaming on pornographic sites that cater child pornography.
The police can then track the location of these users and transmit these information from
the suspects computer to the police. No search warrant was obtained prior to the use of
the program by the police due to impossibility of identifying the possible users, until the
suspects actually visit the monitored sites or stream live videos online.

Using the program, the police tracked down a suspect in a condominium in Manila.
The nature of online visits and live streaming is constrained in a manner that when users
log out, the police would have no way of tracking that user again. So, the police
conducted a raid without a warrant. The police was able to apprehend the suspect in
flagrante delicto while having sex with a 12 year old and livestreaming the act online.

The suspect threatens to bring an administrative action before the Commission on

Human Rights (CHR) against the members of the Police Department who conducted the
warrantless search for violation of his rights. He argued that his right to privacy was
violated. He also argued that the warrantless search and arrest is illegal.

Anti Child Pornography

Under the Anti-Child Pornography law, an internet host is defined as any person who
hosts or who proposes to host internet content in the Philippines Section 3(f). Each one is
bound to observe and perform certain specific duties.

“Duties of an Internet Content Host. – An internet content host shall:

(a) Not host any form of child pornography on its internet address;
(b) Within seven (7) days, report the presence of any form of child pornography, as well
as the particulars of the person maintaining, hosting, distributing or in any manner
contributing to such internet address, to the proper authorities; and
(c) Preserve such evidence for purposes of investigation and prosecution by relevant
authorities.

An internet content host shall, upon the request of proper authorities, furnish the
particulars of users who gained access to an internet address that contains any form of
child pornography.

An internet content host who shall knowingly, willfully and intentionally violate this
provision shall be subject to the penalty provided under Section 15(j) of this Act:
Provided, That the failure of the internet content host to remove any form of child
pornography is hitting its server shall be conclusive evidence of willful and intentional
violation thereof.” (Section 11)

Cybercrime Acts

The Cyber crime law punishes the unlawful or prohibited acts defined and punishable
by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed
through a computer system. Penalty to be imposed shall be one (1) degree higher than
that provided for in Republic Act 9775, if committed through a computer system.

Legality of Data Storage and Usage in Law Enforcement

Under Data Privacy Act (RA10173), people whose personal information is collected,
stored, and processed are called data subjects. Organizations who deal with your
personal details, whereabouts, and preferences are duty bound to observe and respect
your data privacy rights.

The provision of the Data Privacy Act on law enforcement, Section 4 of the law and
Section 5 of the IRR exempt specific types or classes of information from its scope. In
particular, paragraph (d) of the latter states:

“Section 5. Special Cases. The Act and these Rules shall not apply to the following
specified information, only to the minimum extent of collection, access, use,
disclosure or other processing necessary to the purpose, function, or activity
concerned:

d. Information necessary in order to carry out the functions of public authority, in

accordance with a constitutionally or statutorily mandated function pertaining to law
enforcement or regulatory function.”

Online child abuse, exploitation and child pornography are not protected activities,
and are recognized limitations on freedom of expression and right to privacy. As
expressed by Justice Holmes, the constitutional guarantee obviously was not intended to
give immunity for every possible use of language. In the case of Lucas v. Royo it was
provided: The freedom to express ones sentiments and belief does not grant one the
license to vilify in public the honor and integrity of another.

Warrantless Access

Under the Data Privacy Act, law enforcement activities will not be unduly restricted,
subject to requirements of due process. Only specific information necessary to fulfill the
mandate of the public authority concerned shall be considered exempt from the coverage
of the law and its IRR. Thus, the collection of data with regards to location of the
commission of the crime is exempt from protection of the Data Privacy Act and the
constitution given that due process is observed.

Section 12 (Real-Time Collection of Traffic Data) of the Cybercrime Prevention Act

was struck down as unconstitutional by the Supreme Court in the landmark case Disini v.
The Secretary of Justice. The provision would have authorized the National Bureau of
Investigation (NBI) and the Philippine National Police (PNP) to collect or record in
real-time, with due cause, traffic data associated with specified communications
transmitted by means of a computer system .

However, the Implementing Rules and Regulations (IRR) of the law, which were
promulgated in August 2015, effectively reinstated the struck down provision. The
Regulations broadly authorize law enforcement authorities, upon the issuance of a court
warrant, “to collect or record by technical or electronic means”, “computer data that are
associated with specified communications transmitted by means of a computer system.”
Access to data traffic must be made with court warrant.

Warrantless Arrest

According to the Rules of Court, Rule 113, Section 5, a warrantless arrest, also known
as "citizen’s arrest," is lawful under three circumstances:
1. When, in the presence of the policeman, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense. This is the "in flagrante
delicto" rule.
2. When an offense has just been committed, and he has probable cause to believe,
based on personal knowledge of facts or circumstances, that the person to be
arrested has committed it. This is the "hot pursuit" arrest rule.
3. When the person to be arrested is a prisoner who has escaped from a penal
establishment.

In flagrante delicto warrantless arrest should comply with the element of immediacy
between the time of the offense and the time of the arrest. If an accused is caught in
flagrante delicto, the warrantless arrest is lawful and the evidence obtained in a search
incidental to the arrest is admissible as evidence.
Conclusion

Does the use of omnivore violate the right to privacy? No, child pornography which
is the particular target of the said program is not protected by the constitution and data
privacy act. It is in fact punished under cybercrime law and anti-child pornography act.

Can the arrests subsequent to its usage be considered valid without warrant? Yes,
although the IRR of cybercrime law explicitly provides that Court Warrant is
indispensible in real-time data access such as in the case at hand, the arrest is still valid.
The moment law enforcers obtain knowledge of the possible commission of child
pornography the “Hot Pursuit Doctrine” under Valid Warrantless Arrest will be in play.
The moment the of apprehension in Flagrante Delicto of said suspect having sex with a
12 yr old the said arrest was constitutional and valid.

REFERENCES

AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION,

INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES
THEREFOR AND FOR OTHER PURPOSES. (2012). Retrieved from
https://www.officialgazette.gov.ph/2012/09/12/republic-act-no-10175/

AN ACT DEFINING THE CRIME OF CHILD PORNOGRAPHY, PRESCRIBING

PENALTIES THEREFOR AND FOR OTHER PURPOSES. (2009). Retrieved from
https://www.officialgazette.gov.ph/2009/11/17/republic-act-no-9775-s-2009/

AN ACT PROTECTING INDIVIDUAL PERSONAL INFORMATION IN

INFORMATION AND COMMUNICATIONS SYSTEMS IN THE GOVERNMENT
AND THE PRIVATE SECTOR, CREATING FOR THIS PURPOSE A NATIONAL
PRIVACY COMMISSION, AND FOR OTHER PURPOSES. (2012). Retrieved from
https://www.officialgazette.gov.ph/2012/08/15/republic-act-no-10173/

[G.R. No. 136185. October 30, 2000.]. (2000). Retrieved from

https://lawlibrary.chanrobles.com/index.php?option=com_content&view=article&id=40
722:g-r-no-136185-october-30,-2000-eduardo-p-lucas-v-maximo-c-royo,-et-al&catid=13
98&Itemid=566

WARRANTLESS ARREST & SEARCH: A POLICE PRIMER. (2018). Retrieved from

Administrator, W. (2018). Home. Retrieved May 23, 2020, from
https://ls.pnp.gov.ph/index.php/publications/22-warrantless-arrest-search-a-police-primer

HONOR CODE
The foregoing answer I submit is original, new work that I alone have authored. In
writing the answer, I have not consulted with or received help from others. I have taken
care to provide proper citations for all ideas, statements, quotations, and facts presented
that are not my own.

NAME - ALPHEUS SHEM A. ROJAS - DATE May 29, 2020