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CHAPTER IV:
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Cybersecurity Legislation and Enforcement
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Coverage:
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Lesson 1: Rules on Electronic Evidence
Lesson 2: Electronic Documents and Signatures
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Sources:
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1. AM. No. 01-7-01-SC.- Re: Rules on Electronic Evidence
2. Quarterly IT Law Journal of the Arellano Law School, April 2004, Vol. 1, No. 1
3. Electronic Evidence Fiche: PHILIPPINES by UNODC
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Acronyms Used:
ECA – Electronic Commerce Act
REE – Rules of Electronic Evidence
ROC – Rules of Court
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THE PHILIPPINE RULES ON ELECTRONIC EVIDENCE:
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The Rules of Electronic Evidence became effective on 1 August 2001 and initially apply to civil, quasi-judicial and administrative proceedings pending after that date. On 24 September 2002, it was amended to include from its coverage criminal cases effective 24 October 2002.
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ELECTRONIC SIGNATURE VS. DIGITAL SIGNATURE:
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Electronic signature refers to any distinctive mark or characteristic in electronic form representing the identity of a person and associated with an electronic data message or electronic document and therefore includes digital signature. Electronic signatures have the “functional equivalent” of the signature of a person on a written document.
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Digital signature refers to an electronic signature consisting of a transformation of an electronic data message or electronic document using a cryptographic system: asymmetric or symmetric through a certification authority.
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RELATED DEFINITIONS:
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Electronic evidence
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According to Section 3 [u] of the Implementing Rules and Regulations of Republic Act no. 10175 (“The Cybercrime Prevention Act of 2012”), electronic evidence “refers to evidence, the use of which is sanctioned by existing rules of evidence, in ascertaining in a judicial proceeding, the truth respecting a matter of fact, which evidence is received, recorded, transmitted, stored, processed, retrieved or produced electronically”.
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Computer system
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According to Section 3 [l] of the Implementing Rules and Regulations of Republic Act no. 10175 (“The Cybercrime Prevention Act of 2012”), computer system refers to “any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs automated processing of data. It covers any type of device with data processing capabilities, including, but not limited to, computers and mobile phones. The device consisting of hardware and software may include input, output and storage components, which may stand alone or be connected to a network or other similar devices. It also includes computer data storage devices or media”.
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Computer Data
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According to Section 3 [j] of the Implementing Rules and Regulations of Republic Act no. 10175 (“The Cybercrime Prevention Act of 2012”), computer data refers to “any representation of facts, information, or concepts in a form suitable for processing in a computer system, including a program suitable to cause a computer system to perform a function, and includes electronic documents and/or electronic data messages whether stored in local computer systems or online”
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Categories of computer data (e.g. basic subscriber information, traffic data and content data)
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According to Section 3 [o] of The Republic Act no. 10175 (“The Cybercrime Prevention Act of 2012”), subscriber’s information refers to “any information contained in the form of computer data or any other form that is held by a service provider, relating to subscribers of its services other than traffic or content data and by which identity can be established: (1) The type of communication service used, the technical provisions taken thereto and the period of service; (2) The subscriber’s identity, postal or geographic address, telephone and other access numbers, any assigned network address, billing and payment information, available on the basis of the service agreement or arrangement; and (3) Any other available information on the site of the installation of communication equipment, available on the basis of the service agreement or arrangement”
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According to Section 3 [p] of The Republic Act no. 10175 (“The Cybercrime Prevention Act of 2012”), traffic data or non-content data refers to “any computer data other than the content of the communication including, but not limited to, the communication’s origin, destination, route, time, date, size, duration, or type of underlying service”
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Content data refers to “the communication content of the communication, the meaning or purport of the communication, or the message or information being conveyed by the communication, other than traffic data” – Section 3 [m] of The Rules and Regulations Implementing Republic Act no. 10175 (“The Cybercrime Prevention Act of 2012”)
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Electronic surveillance or real-time collection of computer/communication data
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According to Section 3 [m] of The Republic Act no. 10175 (“The Cybercrime Prevention Act of 2012”), interception refers to “listening to, recording, monitoring or surveillance of the content of communications, including procuring of the content of data, either directly, through access and use of a computer system or indirectly, through the use of electronic eavesdropping or tapping devices, at the same time that the communication is occurring”.
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Real-time collection of traffic data was regulated in Section 12, Paragraph 1 of The Republic Act no. 10175 (“The Cybercrime Prevention Act of 2012”): “Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system”. However, the legal provision was declared unconstitutional in the case of Disini v. SOJ.
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Service provider (e.g. ISP, hosting)
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According to Section 3 [n] of The Republic Act no. 10175 (“The Cybercrime Prevention Act of 2012”), service provider refers to: “(1) Any public or private entity that provides to users of its service the ability to communicate by means of a computer system; and (2) Any other entity that processes or stores computer data on behalf of such communication service or users of such service.”
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ELECTRONICALLY STORED INFORMATION
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Electronic data message
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It refers to information generated, sent, received or stored by electronic, optical or similar means. [1]
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Electronic document
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It refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term “electronic document” may be used interchangeably with electronic data message. [2]
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Includes electronic documents / electronic data messages; It includes:
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– Information generated using word processors, spreadsheets, presentation software
(eg. MS Offices, OpenOffice, LibreOffice, Google Docs, Sheets, etc, MS Office Online)
– Information generated with the use of application software, eg., financial reports, bank statements, etc.
(Financial statements generated by accounting software like QuickBooks, a monthly bank statement generated through online banking platforms like GCASH and Paymaya to request banking transactions, or a budget report created using specialized financial software.)
– Scanned or OCR’ed documents
(A signed contract scanned and saved as a PDF, a handwritten note digitized through a scanner, or a paper invoice converted into a digital format.)
– Digital photos
(Commonly in PNG or JPEG format, with high-resolution images captured with a digital camera, product photos for an online store, or project progress photos stored in digital format.)
– Email or Electronic Mails
– Text (SMS) Messages
– Video / Audio recordings
– Information held or stored in databases
(Customer information stored in a CRM (Customer Relationship Management) system, inventory data in a database for an e-commerce platform, or employee records in an HR database.)
– System, audit, or event logs and other logs
(Server logs detailing user activities, system logs recording error events, or audit logs tracking changes made to a critical system.)
– Traffic Data
(Internet traffic data showing website visits, network traffic logs indicating communication between devices, or GPS data tracking the movement of delivery vehicles.)
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Devices that hold Electronically Stored Information:
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– Computers Volatile memory
(Random Access Memory (RAM) in a computer, which temporarily stores data and allows quick access for processing tasks. Erasable Programmable Read-Only Memory (EPROM) may also store firmware or critical system information.)
– Printers, scanners, copiers whether wireless or not
(A multifunction printer that stores scanned documents temporarily before printing, or a standalone scanner that retains digital copies of scanned images until transferred to a computer.)
– Storage Media: hard disks drives (HDD), Solid State Drives (SDD), magnetic tapes, CDs/DVDs, flash disks/ thumb drives or Flash drives
(Data stored on a computer’s hard disk, historical backups on magnetic tapes, software installations on CDs/DVDs, or files transferred and stored on a USB flash drive.)
– Mobile Phones, PDAs, Gaming Devices and similar devices
(Personal information, photos, and applications stored on a smartphone, contact lists and calendar entries on a Personal Digital Assistant (PDA), or game progress saved on a gaming console.)
– Network devices, including routers, bridges and similar devices
(Configuration settings, logs, and firmware on a network router, data packets temporarily stored in a network bridge, or network topology information on a switch.)
– Network security devices, including firewalls, intrusion detection devices, intrusion prevention devices
(Firewall logs containing information on blocked or allowed network traffic, alerts generated by an intrusion detection system, or records of prevented security incidents in an intrusion prevention system.)
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Paper Document Storage
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Physical or Written Documents (Paper) to Electronic (Paperless)
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In Windows… In Windows… Electronic*Information* is*stored*in*a* hierarchical*manner,* grouped*in*folders/ subfolders 
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Electronically Stored Information
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1) Content: The electronic information
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Example: Information written on paper;
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2) Metadata: Characteristics of the virtual container of the electronically stored information
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Example: The characteristics of the paper the information is written on;
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DIGITAL SIGNING AND ENCRYPTION
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Digital Signature [3]
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It refers to an electronic signature consisting of a transformation of an electronic document or an electronic data message using an asymmetric or public cryptosystem such that a person having the initial untransformed electronic document and the signer’s public key can accurately determine:
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1. whether the transformation was created using the private key that corresponds to the signer’s public key; and
2. whether the initial electronic document had been altered after the transformation was made.
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Digitally Signed [4]
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It refers to an electronic document or electronic data message bearing a digital signature verified by the public key listed in a certificate.
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Electronic Signature
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1. It refers to any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document xxx [5]
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2. xxx or any methodology or procedures employed or adopted by a person and executed or adopted by such person with the intention of authenticating or approving an electronic data message or electronic document. [6]
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Comment:
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1. Digital Signature is a class of electronic signatures.
2. Technology implementation of electronic signature;
3. Employs a procedure or methodology that generates a mark which is logically associated with the identity of the signer;
4. The mark is appended to the electronic document;
5. Secures the electronic document;
6. Enables verification of the identity of the signer; and
7. Involves a third party called “Certification Authority”
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PUBLIC KEY INFRASTRUCTURE
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Key Pair [7]
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In an asymmetric cryptosystem refers to the private key and its mathematically related public key such that the latter can verify the digital signature that the former creates.
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Private Key [8]
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It refers to the key of a key pair used to create a digital signature.
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Public Key [9]
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It refers to the key of a key pair used to verify a digital signature.
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CERTIFICATION AUTHORITY
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1. Operates a technology infrastructure that enables digital signing; [10] [11]
2. Infrastructure = “Public Key Infrastructure” (PKI)
3. Provides the procedure or methodology for digital signing and verification
4. Public Key Infrastructure, commonly referred to as PKI, is a framework that manages the generation, distribution, and verification of digital certificates, including public and private keys. It establishes a trusted hierarchy where entities can securely communicate over insecure channels.
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SECURING ELECTRONIC DOCUMENTS
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Digitally signed plain text electronic documents may still be changed by a third party BUT document and signature verification allows detection if the plain text has been changed after signing Electronic documents may be encrypted to prevent others from viewing and/or changing the contents of the electronic documents.
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Jurisprudence
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1. To be admissible in evidence as an electronic data message or to be considered as the functional equivalent of an original document under the Best Evidence Rule, the writing must foremost be an “ELECTRONIC DATA MESSAGE” or an “ELECTRONIC DOCUMENT”. The electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws, and is authenticated in the manner prescribed by the rules. In the same case, it was held that EDM and electronic document may be used interchangeably as this was part of the resolution of the bicameral committee in the Congress. [12]
2. FACSIMILE transmissions are not “paperless” but verily are paper-based.
3. It was also held that since fax cannot be considered as electronic evidence, with greater reason is a photocopy of such fax transmission not electronic evidence.
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RECOGNITION OF ELECTRONIC EVIDENCE:
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Whenever the rules on evidence refer to a written document it shall include electronic documents (or any information sent, received, or stored by electronic, optical or similar means as electronic data).
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Comments:
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1. An electronic evidence is admissible in evidence provided it is competent, relevant and can be authenticated in the manner provided for by the rules; and the fact that it is in electronic form will not diminish the confidential nature of a privileged communication.
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2. OLD RULE: Documents as evidence consist of writings or any material containing letter, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents” [13]
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3. NEW RULE: Documents as evidence consist of writings, recordings, photographs or any material containing letters, words, sounds, numbers, figures, symbols, or their equivalent, or other modes of written expression offered as proof of their contents. Photographs include still pictures, drawings, stored images, x-ray fi films, motion pictures or videos. [14]
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4. For evidentiary purposes, an electronic document shall be the functional equivalent of a written document under existing laws. [15]
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5. An electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules; [16]
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6. Nothing in the application of the rules on evidence shall deny the admissibility of an electronic data message or electronic document in evidence on the sole ground that it is in electronic form or on the ground that it is not in the standard written form; [17]
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7. The confidential character of a privileged communication is not lost solely on the ground that it is in the form of an electronic document. [18]
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BEST EVIDENCE RULE IN ELECTRONIC DOCUMENTS:
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Original Document
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An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a (1) printout or (2) output readable by sight or (3) other means, shown to reflect the data accurately. [19]
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Comment:
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Printout – electronic document printed on paper;
Output readable by sight – electronic document is displayed on computer monitor or screen or using a LCD projector or any type of projection device;
Other means – Hologram? Braille?
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Copies as equivalent of the originals (Under the Rules of Electronic Evidence)
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When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original. [20]
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Copies as equivalent of the originals (Under the Rules of Court)
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OLD RULE:
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xxx
(b) When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. [21]
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(c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. [22]
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NEW RULE:
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xxx
(b) A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original. [23]
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(c) A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original, or (2) in the circumstances, it is unjust or inequitable to admit the duplicate in lieu of the original. [24]
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IS A PHOTOCOPY AN ORIGINAL?
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When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original. [25]
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Jurisprudence:
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1. xxx there is no substantial distinction between a photocopy or a “Xerox copy” and a “true copy” for as long as the photocopy is certified by the proper officer of the court, tribunal, agency or office involved or his duly-authorized representative and that the same is a faithful reproduction of the original. [26]
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Ephemeral Electronic Communications
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It refers 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. [27]
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Ephemeral electronic evidence refers to telephone conversation, text messages, chat sessions, streaming audio or video or other forms of communication that is not recorded or retained. It should be proven by the testimony of the person who was a party to the same, or has personal knowledge of the same, or in the absence thereof, by other competent evidence. If the communication is recorded it shall be proven as an electronic document.
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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. [28]
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The evidence is admissible provided they are shown, presented or displayed to the court and identified, explained or authenticated by the person who produced the same or by a competent testimony on the accuracy thereof.
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EXCEPTION TO THE HEARSAY RULE:
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Records, data or information kept in electronic form in the regular course of business are excepted from the hearsay rule provided
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– they are proven or shown by the testimony of the custodian or other qualified witness and
– it is proven that compilation of such data, records or information is a regular practice. To overcome this, the adverse party must present proof of the untrustworthiness of the source of information, or the method or circumstance of the preparation, transmission or storage.
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AUTHENTICATION OF ELECTRONIC DOCUMENTS:
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Burden of Proving Authenticity: The party introducing the electronic evidence.
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Manner of Proving
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Authenticity of Private Documents: The electronic evidence must be proved before it is offered as authentic in any of the following manner:
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– evidence that it has been signed digitally by the person,
– evidence that appropriate security procedures were applied as may be authorized by law or the SC, or
– other evidence showing integrity and reliability to the satisfaction of the court.
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Manner of Authenticating Electronic Signature:
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– evidence to prove the method to establish and verify a digital signature,
– other means provided by law,
– any means to satisfy the court of its genuineness.
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METHODS OF PROVING ELECTRONIC DOCUMENTS:
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By Affidavit Evidence: based on personal knowledge and indication of the competence of the affiant to testify on the matters contained therein. The contents of the affidavit shall be affirmed in open court and may be cross-examined as a matter of right by the adverse party in a summary hearing.
By Electronic Testimony: When an examination of a witness is done electronically, the entire proceedings shall be transcribed stenographically. The transcript must be certified and indicate that the proceedings were electronically recorded. The electronic evidence, the recording and the transcript shall form part of the records of the case and shall be deemed as prima facie evidence of the proceedings.
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DISPUTABLE PRESUMPTIONS: (AFTER AUTHENTICATION IS PROVED)
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Electronic Signature:
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– it correlates to the identity of the person,
– it was affixed with intent to authenticate,
– it was affixed to indicate consent to the transaction, and
– the process to affix the signature operated without error or fault.
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Digital Signature: In addition to the above,
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– information contained in the certificate (of the certification authority) is correct,
– signature was created during the operational period of the certificate,
– no cause to render certificate revocable or invalid,
– message associated to the signature has not been altered from the time of signing, and
– it has duly issued by the certification authority.
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FACTORS TO CONSIDER IN DETERMINING EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS:
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1. Reliability of manner or method in which it was generated, stored or communicated.
2. Reliability of the manner in which the originator was identified.
3. Integrity of the information and communication system in which it is recorded or stored.
4. Familiarity of the system by the person who made the entry.
5. The nature and quality of the information that went into the communication system where the electronic document was based.
6. Other factors affecting accuracy and integrity of the electronic documents.
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DATA RETENTION REGIME
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Are there any domestic laws that stipulate a mandatory retention period of electronic data? If so, for what types of data and for how long?
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The integrity of traffic data and subscriber information relating to communication services provided by a service provider shall be preserved for a minimum period of six (6) months from the date of the transaction according to Section 13 of The Republic Act no. 10175. [29]
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It is stated in the same section that
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“content data shall be similarly preserved for six (6) months from the date of receipt of the order from law enforcement authorities requiring its preservation. Law enforcement authorities may order a one-time extension for another six (6) months: Provided, that once computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a notification to preserve the computer data until the termination of the case.”
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Footnotes:
[1] Rule 2, Sec. 1 (g) of A.M. NO. 01-7-01-SC
[2] Rule 2, Sec. 1 (h) of A.M. NO. 01-7-01-SC
[3] Rule 2, Sec. 1 (e) of A.M. NO. 01-7-01-SC
[4] Rule 2, Sec. 1 (f) of A.M. NO. 01-7-01-SC
[5] Republic Act No. 8792, Electronic Commerce Act, Sec. 5 (e)
[6] Republic Act No. 8792, Electronic Commerce Act, Sec. 5 (e)
[7] Rule 2, Sec. 1 (m) of A.M. NO. 01-7-01-SC
[8] Rule 2, Sec. 1 (n) of A.M. NO. 01-7-01-SC
[9] Rule 2, Sec. 1 (o) of A.M. NO. 01-7-01-SC
[10] https://oneflow.com/blog/what-is-a-digital-signature-pki/
[11] The CA is a trusted entity that issues digital certificates to individuals or organizations. These digital certificates contain the public key of the entity and are used to verify the authenticity of the digital signature. The CA signs these digital certificates using its private key, creating a chain of trust. When a recipient receives a digitally signed document, they can verify the authenticity of the digital signature by checking the digital certificate’s validity and the CA’s signature.
[12] MCC Industrial Corp. v. Ssangyong G.R.No. 170633, October 17, 2007.
[13] ROC Rule 130 Sec. 2
[14] 2019 AMENDMENTS TO THE 1989 REVISED RULES ON EVIDENCE (A.M. NO. 19-08-15-SC); Rule 130 Sec. 2
[15] ECA, Sec. 7 and REE Rule 3, Sec. 1
[16] REE Rule 3, Section 2
[17] ECA Sec. 12
[18] REE Rule 3, Sec. 3
[19] REE Rule 4 Sec. 1
[20] REE Rule 4 Sec 2
[21] ROC Rule 130, Sec. 4 (b)
[22] ROC Rule 130, Sec. 4 (c)
[23] 2019 AMENDMENTS TO THE 1989 REVISED RULES ON EVIDENCE (A.M. NO. 19-08-15-SC); Rule 130 Sec. 4 (b)
[24] 2019 AMENDMENTS TO THE 1989 REVISED RULES ON EVIDENCE (A.M. NO. 19-08-15-SC); Rule 130 Sec. 4 (c)
[25] REE Rule 4
[26] Doble v. Desai, June 5, 2017, G.R. No. 215627
[27] REE Rule 2 Sec 1 (k)
[28] REE, Rule 11, Sec. 2
[29] The Cybercrime Prevention Act of 2012
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