An Assignment for Public International Law (PIL)
Submitted to: Atty. Prince Arthur Neyra (Professor)
Submitted by: Garado, Joanna Paola Colimod, Gemilito Olarte, Julie Ann Cagula, Eleazar Panerio, Emarie
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1. How is electronic evidence distinguished from paper evidence? What is the legal foundation or basis of ephemeral electronic evidence? How can these new types of evidence be authenticated and deemed admissible? Explain.
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INTRODUCTION
Electronic Evidence in The International Arena An American Supreme Court Associate Justice in the person of Oliver Wendell Holmes, Jr. once said: "The great thing in the world is not so much where we stand, as in what direction we are moving." In the purview of justice systems in any jurisdiction, it is inevitable to take no other direction but forward. Such holds true in this digital age, where a person's information may be easily found, small ideas are re-echoed a billion times, and gathering of data can be made in a fraction of a second. Thus, there is a substantial clamor for modernizing the prosecution of criminals and settling civil liabilities through recognizing and gathering of electronic or digital evidence, to go along with the fast-paced of life in the 21st century. Digital evidence or electronic evidence is "any probative information stored or transmitted in digital form that a party to a court case may use at trial" (Casey, Eoghan (2004). Digital Evidence and Computer Crime, Second Edition). The United Nations (UN) Security Council Counter-Terrorism Committee recognizes the significant challenges of UN Member States in their attempts to obtain admissible digital evidence to be used in judicial proceedings. This is something worth pondering on, since most foreign terrorist fighters use the internet and other electronic means to relay information away from the prying eyes of civilians or prosecutors and investigators. Thus, the Counter-Terrorism Committee see a need for judicial cooperation in prosecuting foreign terrorists based only on digital or electronic evidence gathered. However, often, established legal frameworks today have yet to catch up to technology. But in the international perspective, prosecuting criminals through their electronic or digital transactions is possible, albeit, needs cooperation in between States and government agencies. Such was illustrated in the case of United States of America vs. Alexander Cazes.
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In 2014, Cazes a.k.a. "ALPHA02" a.k.a "ADMIN," with other unknown persons, created AlphaBay, a dark-web marketplace where users may buy and sell illegal goods, controlled substances, fraudulent or stolen documents, hacking malware, and toxic substances among others. There were thousands of users of the said online marketplace. Finally, in 2017, an arrest warrant was issued against Cazes and his Bangkok home was raided. He was held by the Royal Thai Police for a week, until he committed suicide while under custody. The successful arrest of Cazes and the shutdown of AlphaBay was a collective effort and cooperation between America, Thailand, the Netherlands, United Kingdom, France, Lithuania and Canada. The FBI, DEA, Dutch Police and Europol had to use secure communication channels, hire specialists from the European Cybercrime Centre to gather enough evidence, most of them are in the form of electronic evidence, to warrant the arrest of Cazes. The case effectively mirrored organized crime in the digital age, and the impact of the internet in the prosecution of criminals. It shows how transnational organized crime might adapt and transform itself in the years to come, with major players in the commission and prosecution of criminal offenses being able to cross borders without physically doing so. A recent development was made, however, in February 2019, when the United Nations Office on Drugs and Crime (UNODC), the United Nations Counter-Terrorism Committee Executive Directorate (CTED) and the International Association of Prosecutors (IAP), have jointly drafted and launched the "Practical Guide for Requesting Electronic Evidence Across Borders," to provide guidelines for law enforcement entities and prosecutors worldwide in gathering and handling electronic evidence. The guide is available to criminal justice officials of Member States, and includes a compilation of "country-specific focal points, country-specific focal points, a mapping of the major communication service providers' relevant procedures and available points of contact, legal frameworks and practical requirements for informal (police-to-police) and formal mutual legal assistance cooperation." The Practical Guide also provides references to assist practitioners on how to request and produce digital evidence needed for trial.
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LOCAL HISTORY OF ELECTRONIC EVIDENCE In this information age, technological usages including electronic communications and its related matters are very advantageous to human interactions. However, on the other side of the coin, some individual abuse these advantages and committed act or omission violative of the rights of another. Thus, governments around the world promulgated a rule, either through legislative or judicial authority, which will protect people from the abuse of another. In order that the citizenry or even aliens be protected from these abuses and criminal acts, the rule will allow these people to obtain evidence through copies or other act of generating the evidence in a manner provide by this rule. In our jurisdiction, the Philippine government through our Supreme Court, exercising its rule-making power, issued the Rules on Electronic Evidence on August 2001. The latter is hereby issued to support the prior enactment by the Congress of Republic Act No. 8792, also known as the “Electronic Commerce Act” which took effect on 14th of July 2000. The Rule covers all electronic document or electronic data message. It is applicable in all civil actions and proceedings, as well as quasi-judicial and administrative cases. However, on September 24, 2002, the Supreme Court issued a resolution expanding the coverage of the Rules to criminal cases. The amendment took effect on October 14, 2002 following its publication in the Manila Bulletin, a newspaper of general circulation, on Sept. 27, 2002. However, about 10 years after the amendment, the Supreme Court, in the 2010 case of Rustan Ang v. Court of Appeals, 618 SCRA 592, held that the Rules on Electronic Evidence does not apply to criminal actions. The petitioner in the case was charged of violation of RA 9262, also known as “Violence Against Women and their Children Act”. However, the case of Ang did not mention the 2002 amendment of the application of the Rule to criminal action. Admissibility, confidentiality and originality including authenticity of electronic documents are significant features of Rules of Electronic Evidence. Electronic Evidence Rules provided a legal framework that addresses various concerns relative to electronic documents and transactions. To date, the SC promulgated a handful of decisions that interpreted the relevant provisions of said legal measures. However, there appears to be a bifurcation in their interpretation and application. After the issuance of this Rule, the Supreme Court established numbers of jurisprudence in which different subject matters related to electronic documents and transactions.
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These matters include SMS or text messages, computer print-outs, fax transmissions, and photocopies of documents. One legal practitioner said that maybe in the future computer records containing scamming transactions, list of politicians receiving proceeds from illicit activities and CCTV records are possible matters that will be tackled by the higher court. In matters concerning SMS or text messages, the case of Zaldy Nuez vs. Elvira Cruz-Apao, 455 SCRA 288, resolved the issue of whether SMS or text messages are admissible as electronic evidence. The Supreme Court admitted as evidence SMS or text messages, and cited Section 1(k) of the E lectronic Evidence Rules which defined the term "ephemeral electronic communication" and classified text messages as such. "Ephemeral electronic communication" refers to "telephone conversations, text messages, chat room sessions, steaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained." The ruling was reiterated in the case of Vidallon-Magtolis v. Salud, 469 SCRA 439 on September. 9, 2005. The legal issue of whether a computer print-out with handwritten notations is an electronic document was resolved in the case Aznar v. Citibank, 519 SCRA 287. The Supreme Court held that such document "cannot be considered admissible as its authenticity and due execution were not sufficiently established" by the party offering the same as evidence. The Court applied the Rules of Court particularly Section 20, Rule 132, as the E-Evidence Rules was not yet in existence at the time the lower court’s decision was promulgated. The ROC provides that whenever any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either by: (a) anyone who saw the document executed or written; or (b) by evidence of the genuineness of the signature or handwriting of the maker. The Court said that, in his testimony, the person offering the said computer print-out did not actually see the document executed or written. The Court also discussed the provisions of the E-Evidence Rules and said that even if the E-Evidence Rules was applied, the authentication of the subject document was also found to be "wanting." It ruled that the offeror’s testimony failed to demonstrate how the information reflected on the print-out was generated and how said information could be relied upon as true. In other matters, print-outs and photocopies of facsimile transmissions are not electronic evidence. This declaration was made in the case of MCC Industrial Sales Corp. v. Ssangyong Corp., 536 SCRA 408. It determined whether an original print-out of a facsimile transmission is
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an electronic data message or electronic document, and noted the differences in the definitions of electronic data message and/or electronic document in the E-Commerce Act and its implementing rules and regulations and in the E-Evidence Rules, in light of the UNCITRAL Model Law and the legislative deliberations on the E-Commerce Act. In the UNCITRAL Model Law, data message is defined as "information generated, sent, received or stored by electronic, optical or similar means including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy." This definition is similar to the IRR’s definition of what constitutes electronic data message. Further, the higher court pointed out that the intention of the legislature when it passed the E-Commerce Act is to exclude facsimile transmissions. Notably, the definition in the E-Commerce Act of "electronic data message" does not include the latter portion of the UNCITRAL’s definition, i.e., the portion "but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy." The E-Evidence Rules defines electronic data message and electronic document substantially the same as how the E-Commerce Act defines said terms. The Court stressed that said deletion from the E-Commerce Act’s definition was intentional, as Congress intended to focus the thrust of the law to paper-less communications and digital transactions. For photocopies of documents, the Supreme Court substantially discussed and ruled that these matters are not covered by Electronic Evidence Rules. The Court in the case of National Power Corp. vs. Judge Codilla, 520 SCRA 412 pointed out that under the Electronic Evidence Rules, an electronic document is relevant only in terms of the information contained therein. What differentiates an electronic document from a paper-based document is the manner by which the information contained therein is processed - to be considered an electronic document, the information must be "received, recorded, transmitted, stored, processed, retrieved, or produced electronically." The subject documents were not considered by the SC as electronic evidence due to the existence of manual notations.
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STATUS QUO In the current Philippine setting, Republic Act No. 8792 or the Electronic Commerce Act of 2000, expressly provides that for evidentiary purposes, an electronic document shall be the functional equivalent of a written document under existing laws. It establishes as a principle that any electronic data message, document, or signature, which is the functional equivalent of a written document or original signature, is now clearly admissible as evidence subject to its integrity, reliability and that it can be authenticated under the rules provided. As a response to such law, the Supreme Court promulgated on August 2001 the A.M. No. 01-7-01-SC or the Philippine Rules on Electronic Evidence which directly addresses cases wherein an electronic document or electronic data message is offered or used in evidence. Under the rules, electronic documents are now included under the terms writing, document, record, instrument, memorandum or any other form of writing which may be referred to in a rule of evidence, provided however that (1) it complies with the rules on admissibility prescribed by the Rules of Court and related laws; (2) it is authenticated in the manner prescribed by the Rules; and (3) it is still subject to the confidential character of a privileged communication. The Rules on Electronic Evidence (REE) originally applies only to all civil actions and proceedings, as well as quasi-judicial and administrative cases but was later on amended by a Supreme Court resolution which took effect on October 14, 2002, further expanding the coverage of the Rules on Electronic Evidence to criminal actions. However, according to Dr. Atty. Noel G. Ramiscal, the Philippines has been behind since then from other developing countries in addressing evidentiary issues that electronic data (e-data) pose to creators, users, destroyers of these data,
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the lawyers who represent them and the courts. He even went on to mention that the country has not sent any contingent of note or has participated in the formulation of the international standards for electronic discovery (E-discovery) of electronic evidence by the ISO and the IEC given that no revisions has been made to the current Philippine Rules on Electronic Evidence. Just recently or in December 15, 2016, the National Privacy Commission issued Circular 16-04 entitled “Rules of Procedure” which incorporated for the first time provisions relative to e-discovery of electronic data in cases of data privacy breaches. It contains provisions on an Order to Confer for Discovery (Section 13) which outlines the main concerns of legal practitioners in searching for or producing relevant e-data and Discovery (Section 14) which sets limitations on ediscovery.
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PAPER EVIDENCE At the commencement of trial, the judge has yet to know the facts that surround a particular case wherein he has to render judgment based on the merits of the arguments of each opposing side. Just like an empty scale – the scales of justice – that stands at the balance, each side have a chance on tipping the scales on their favor. It is up to them to tilt the scale one way or another so that at the end of the hearing, the judge can determine what the truth likely is and, thus, he can render judgment on what he has heard or seen: the evidence. As defined in Black’s Law Dictionary, evidence is any species of proof or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, concrete objects, etc., for the purpose of inducing belief in the minds of the court or jury as to their contention. The evidence presented during trial are governed by the rules of evidence which covers the rules and legal principles that govern the proof facts in a legal proceeding. In a civil case, the quantum of proof required is a preponderance of evidence which means that in the event of a tie in evidence, the plaintiff loses. In a criminal case, on the one hand, the quantum of proof needed is proof beyond reasonable doubt. The best and most common method of presenting evidence in court is through paper evidence such as a contract. This is because documents are frozen in time as of their creation and present the facts as it is free of any tampering. This is unlike testimonial evidence which usually accompanied by the weaknesses and distractions of human emotions.
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PAPER EVIDENCE vs. ELECTRONIC EVIDENCE As provided in Sec. 2, Rule 130 of the Rules of Court, Paper Evidence are documents as evidence consists of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents. Likewise, in accordance with Sec. 3, Rule 130 of the Rules of Court in paper evidence no evidence shall be admissible other than the original document itself, except in the following cases: a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; b) When the original is in the custody or under the control of the party against whom the evidence is offered and the latter fails to produce it after reasonable notice; c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and d) When the original is a public record in the custody of a public officer or is recorded in a public office.
On the other hand, pursuant to the Rules of Electronic Evidence, Sec 1, Rule 3, it defines electronic evidence as functional equivalent of paper-based documents- Whenever a rule of evidence refers to the term writing, document, records, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document. Electronic document refers to information or to the presentation of information, data, figures or symbols or other modes of written expression, described or however represented, by which a sight is established or an obligation extinguished, or by which a fact maybe proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any printout or output, readable by sight or other means which accurately reflects the electric data message or electronic document. For purposes of these rules the term electronic document maybe used interchangeably with “electronic data message”. Moreover, the admissibility of such evidence is expressly provided in Sec 2, Rule 3 of the Rules of Electronic Evidence which states that an electronic document is admissible in evidence if it complies with the Rules of Admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these rules. Corollary, the same rule has set three (3) requirements for the admissibility of such evidence: relevancy, competency and proper authentication.
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LEGAL BASIS OF EPHEMERAL ELECTRONIC EVIDENCE
The Supreme Court’s Rules of Electronic Evidence has defined “Ephemeral electronic communication” as pertaining to “telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained” (Rule 2, Sec.1. k).
Rule 11, SEC. 2. Provided: Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted. A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section.
SECTION 1. Audio, video and similar evidence. – “Audio, photographic and video evidence of events, acts or transactions shall be admissible provided is shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof. If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 shall apply.”
In the case of ZALDY NUEZ vs. ELVIRA CRUZ-APAO (A.M. No. CA-05-18-P, April 12, 2005) the issue on whether or not the text messages are admissible in evidence has been resolved. The Supreme Court in this case held that:
Under Section 2, Rule 11 of the Rules on Electronic Evidence, "Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or who has personal knowledge thereof . . . ." In this case, complainant who was the recipient of said messages and therefore had personal knowledge thereof testified on their contents and import. Respondent herself admitted that the cellphone number reflected in complainant’s cellphone from which the messages originated was hers. Moreover, any doubt respondent may have had as to the admissibility of the text messages had been laid to rest when she and her counsel signed and attested to the veracity of the text messages between her and complainant. We have no doubt as to the probative value of the text messages as evidence in determining the guilt or lack thereof of respondent in this case.
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Construing all the relevant provisions of the Rules of E-Evidence on ephemeral evidence, the rules mandate that these types of communication “be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted, provided they are authenticated.
14 AUTHENTICATION OF ELECTRONIC EVIDENCE The coverage of Rules of Electronic Evidence includes Electronic Documents and Signatures which are used as evidence. However, in order to be admitted in Court, such evidence must comply with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules. As to the manner of authentication of Electronic Documents, the provision under Section 2, Rule 5 of this Rule provides that its authenticity must be proved by any of the following means:
(a) by evidence that it had been digitally signed by the person purported to have signed the same; (b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or (c) by other evidence showing its integrity and reliability to the satisfaction of the judge.
It must be noted that the burden of proving the authenticity lies on the person seeking to introduce an electronic document in any legal proceeding. With regard to the authentication of Electronic Signature, under Section 2 of Rule 6, it can be done in any of the following manner: (a) By evidence that a method or process was utilized to establish a digital signature and verify the same; (b) By any other means provided by law; or (c) By any other means satisfactory to the judge as establishing the genuineness of the electronic signature. This type of evidence is only applicable in civil actions and not to criminal proceedings. The Supreme Court ruled in the Case of Ang Vs. CA, G.R. No. 182835; April 20, 2010 that Rustan Ang waived the objection as he did not raise it at the time the electronic message was offered in evidence. It further said: “Besides, the rules he cites do not apply to the present criminal action. The Rules on Electronic Evidence applies only to civil actions, quasi-judicial proceedings and administrative proceedings.”
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CONCLUSION As human lives improve, the need to upgrade every aspect of it is necessary. With the emergence of technology, the legal aspect of the society must also be in consonance with it. This can be attributed to the new trend of modernization. Modernization can be described as the transition of an old concept to a new one. It may be associated with development however, it is important to mention that technology is not the only factor that can affect the modernity of a country. Undeniably, with the frequent usage of most Filipinos with the different products of technology, the Philippines is emerging into a modernized country especially when it comes to technology advancement even though we are incomparable with other developed countries. However, recent survey shows that the Philippines is below average in regional innovation ranking. As provided by the bwordonline.com. The Philippines' rank may be below average but that does not prevent the country from adapting modern ways in the legal arena. With the enactment of the Electronic Commerce Act in 2000 and the issuance of the Rules on Electronic Evidence in 2001, the legal aspect of our society is ready to embrace and address the concerns and issues relating to electronic matters and transactions. And with that, the courts are well equipped with legal basis in deciding such matters. As evidence, the Supreme Court in 2005 ruled that a text message is admissible as electronic evidence. It was enunciated in the case of Nuez v. Cruz- Apao. The most important distinction between a paper evidence and the electronic evidence is the manner by which the information contained therein is processed- to be considered an electronic document, the information must be received, recorded, transmitted, stored, processed, retrieved, or produced electronically. This was emphasized by the Supreme Court in the case of National Power Corp. v. Codilla in 2003. Because of that reason, the Supreme Court ruled in some cases that fax transmissions and computer print- outs are not to be considered as electronic evidence.
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SOURCES: http://www.duhaime.org/LegalDictionary/E/Evidence.aspx https://openjurist.org/law-dictionary/evidence Rules of Court. 2016 ed. pages 423-424 http://www.chanrobles.com/rulesonelectronicevidence.htm#.XIkWVvZuLsY https://www.un.org/sc/ctc/news/2018/09/27/battlefield-digital-evidence-crucial-factorsuccessful-prosecution-foreign-terrorist-fighters-cted-unodc-iap-launch-practical-guidehelp-member-states/ https://www.tandfonline.com/doi/full/10.1080/15567280701418049 https://sherloc.unodc.org/cld/case-lawdoc/cybercrimecrimetype/usa/2017/united_states_of_america_v._alexandre_cazes_aka_a lpha02_aka_admin.html?lng=en&tmpl=sherloc https://www.unodc.org/unodc/en/frontpage/2019/January/unodc-and-partners-releasepractical-guide-for-requesting-electronic-evidence-across-boarders.html