Is E-Government = Easier Government?

Anyone who has had to deal with the government knows what a big pain it can be. Don't we hate it when it's time to renew our licenses or get NBI clearances? It usually means spending the greater part of the day lining up in sweltering offices to interact with unfriendly clerks who cannot be fired no matter how rude or slow they are (in fairness, they are overworked and underpaid, if you don't count their "side" income). Thus, any measure that will make these transactions more convenient is like manna from heaven.

One such measure is the use of e-government, or using the Internet and other ICT for government transactions. E-government is already in full swing in Singapore , where many transactions with the government can be made through ATM-like portals. In the Philippines , the use of e-government is mostly used by BIR (for taxpayer registration) and, to a lesser extent, by DBM (in connection with e-procurement).

E-government has many advantages. Obviously, it is more convenient for people who have to transact with the government—we no longer have to go through the suffering described above. Since there is no human interaction, there is less opportunity for graft or corruption. Still on corruption, e-government is more transparent and observable as all transactions are logged—it would be fairly easy to get usage statistics and, if payments are made electronically, balance the books. E-government could also be an easy way of getting general information about people who transact with government, which can be used for improving services or even shared with the private sector for market research (anonymity should be maintained, of course).

The downside to e-government is security. Given the information we have to divulge when we interact with government, the idea that someone can hack servers can chill attitudes to e-government. It just feels more secure to have our sensitive information in some (un)locked cabinet guarded by an underpaid sikyu who has a penchant for sleeping on the job. However, while threats from hackers can be reasonably plugged, a bigger problem is identity theft. How can the government be sure that those who use e-portals are who they say they are? Some white collar criminal can wreak havoc on your life with just a few mouse clicks, as is happening now in the United States where identity theft is becoming a major problem.

Bottom line, any move towards e-government should be well thought out and done properly, which our brick-and-mortar government is not always known to do. While e-government is the future, we should make sure that we dump the problems of the past on our way there.

Piracy

For quite some time, the Philippines has been part of the Priority Watch List of the US government for being one of the countries which offer inadequate and inefficient IPR protection. Though we have been lifted from the infamous list recently, the problem of piracy continues to pervade our society. To this date, there is an open peddling of bootleg discs of movies, music, and software on thoroughfares, sidewalks, and even malls.

Though there has been a sincere effort on the part of the government to curb IPR infractions, these may prove to be no more than temporary salves to a recurring problem. Piracy continues to lure many people because of its main selling point --- its low price. It is little wonder that many people find themselves drawn to opt for the pirated and counterfeit versions, considering that these can be bought at a fraction of the price of the original. While considerations other than price should also counsel caution, appeals to the public that buying and patronizing pirated products is a crime generally fall on deaf ears simply because the crime of piracy seems to have been disturbingly institutionalized in Filipino culture.

Perhaps it is high time for the government to consider framing a competitive pricing system for original software, movies and music so that people may be drawn to buy the original. Pegging the price of knowledge, information and entertainment too high would be tantamount to curtailing the free flow of ideas in the market.

The reasoning may be flawed, but it nevertheless persuades.

SoaP Opera

“But it turned out when they said this movie was ‘shitty,’ they didn’t mean it ironically. They just thought it would be a piece of shit.”

-New Line marketing president Russell Swartz (from Dateline Hollywood)

Snakes on a Plane was marketed to be a crappy B movie, so crappy that it creates a following, so notorious that people would want to go to a movie theater, shell out some $s and see for themselves how crappy it could be. The very concept of the whole movie, from the crappy title to the crappy marketing strategy (or marketing strategy based on the crappiness of it all) ultimately did not spell out success in terms of revenues. If we were talking about fodder for sarcasm, then perhaps, the movie could be said to be a huge success.

Maybe the producers relied so much on the internet as a revolutionary form of media. The film itself created a strong following in terms of web content. Googling up “Snakes on a Plane” yielded 65,300,000 hits. Did the avant garde marketing successfully relegate “Snakes on a Plane” within the happy bounds of pop-culture? I guess so. But does that mean the New Line Cinema Executives can retire early and buy an island or two off the coast of Fiji? Hehe. I don't think so.

If you think about it, based on the premise of their marketing strategy, the ploy worked well, So well in fact, that maybe people started thinking that the movie was so crappy it wasn't worth spending $10 on. Looking at it another way, maybe it wouldn't have done so well were it not for the online publicity. In the end, what the producers achieved was just another topic for discussion. But then again, is it JUST another topic for discussion? Incorporating bloggers into their marketing strategy created an online macarena/ketchup song monster.

Look again at the figure above. 65 million hits!!! Try typing “Nacho Libre” in the search field and you'll get only 11 million results. Nacho Libre is a seriously funny movie, although it probably didn't gross as well as its producers hoped. What about “Austin Powers?” (who doesn't like Austin Powers?) Only 7.3 million hits.

Wow. That is brilliant marketing strategy. Perhaps if they venture into merchandise, they'd make a killing in sales.

Why search porn for free, when you can pay for it?

When Perfect 10, a soft porn publication which limits access to its porn collection to paying users, sued Google for infringement --- saying that in displaying images taken from its porn site in the search results of Google images, Google violated its property rights, and therefore should be liable to pay damages, --- the latter vigorously denied the allegations. Unluckily for Google, it lost, and was ordered by the court to desist from displaying images as thumbnails in its search results which have originated from Perfect 10's site.

We are not very big fans of porn (we prefer the real thing, hehehe) but somehow we find this decision inadequate, if not unconvincing. After a closer look at the facts and the peculiar circumstances of the case, we are of the position that Google should not be held liable for the acts complained of. Allow us to elucidate.

The images used by Google for its search results do not give users and viewers unauthorized access to Perfect 10's sites. How and why? Google browses through the whole Web for images which it may add or include in its search results -- it has every reason to do so, because more image results means better service as a search engine, which is its main and primary function. The images allegedly owned by Perfect 10 and used by Google in its search results, were taken from some other "third party" sites -- usually sites owned by persons who either have access to the site or have gained access to the site. These persons are usually authorized, paying users of the porn site since access is limited, and upon gaining access to the site, are free to view, save and download said images and other media either into his own computer or his own site online. Google is then able to gain access to the images in the latter situation, and these are the images which it uses as thumbnails for its search results.

We're not so sure, but "our friends say" (hehe, a.k.a. "rumor has it") that most porn sites share data, images and media, and oftentimes link to one another. However, there are also some who come up with original material, which may be viewed only by paying users. The copyright of the said material could be explicitly stated in the porn site itself, and the user is given notice of this upon gaining access to the "goodies" of the site. In this situation, a contract is actually perfected -- the user pays for the access to the site and its content, while the site allows access for monetary consideration, and subject to the conditions and restrictions of copyright and other IP-related conditions. In several cases, however, the user downloads the said images and posts them somewhere in the Web, usually in his own site or online photo album. This act could actually be characterized as infringement, because the user in effect made the said copyrighted images available to the public. When Google uses these images for its image search results, it may not be aware of its original source, or the fact that it is copyrighted. Only the paying user usually knows this. In effect, Google is not "privy" to the contract entered into by the user and the porn site. Therefore, it can be said that it is not bound the said conditions, and thus may not be held liable for whatever damage incurred by the site.

Google is merely a search engine. With the vastness of the world wide web, Google plays a vital role in making surfing the Net easier. Instead of surfers and users endlessly typing urls and website addresses, Google makes things significantly more convenient by providing the links to the said sites, images and the like, and all the user has to do is click. Yes, it is possible that porn sites such as Perfect 10 are prejudiced by this, especially because its paying users, perhaps in the desire to make the most of what they're paying, download or find a way to save the images and other media to their own computer or online database. It is usually through these sites that Google is able to acquire the said images, and use them as thumbnails in the search results. Given this scenario, if there's anyone guilty of infringement or of making the copyrighted images available to the public, it is the user who was able to access the site and afterwards posted the images online, not Google. That user was the one aware of the conditions imposed by the site, not Google. Google is not there to showcase porn like the porn site does... We think its function is to merely let the viewing public know that such an image exists, and may be found somewhere on the Web.

We believe the decision of the court in this case sets a dangerous precedent.

Fair use

The World Wide Web is an easy target for cynicism --- and rightly so.

Admittedly, there are some areas where rights are better-defined and value judgments are less in dispute. For instance, notwithstanding all the loopholes and the absence of laws to prosecute offenders, any rational man would say that cybercrime, in general, is not to be condoned. Or that online pornography is offensive to human sensibilities.

But fair use tells a different story. It involves the weighing of conflicting freedoms that may be hard to reconcile. And since it pits a copyright owner’s proprietary rights against a supposed societal benefit (i.e. proliferation of knowledge), it is hard to tell which is more important --- private rights, or a generalized gain. Restricting a copyright owner’s private rights may stifle his desire for creative pursuits; penalizing the use of links to access copyrighted material on the Web may mean a concomitant loss of Internet freedom. Taken together, these restrictions and infringements, coupled with the precedents they create, may add up to a considerable loss of information liberties. In the Internet, where the concept of freedom is built into the very idea of learning beyond frontiers, any attempt to restrict it will surely be resisted.

All told, the Internet serves up a premise that is hard to refute --- that powerful as it is dangerous, the vast and intriguing landscape that the Internet has introduced for us must be embraced in its entirety, with all its complications and implications --- the informative and the destructive, the picturesque and the pornographic, the legal and the not-so-legal.

Depending on which side you’re in, the World Wide Web may very well be “Tragedy of the Commons” at its worst, or information technology at its best.

asl?

'The internet is a vast and confusing place, where is a little girl to go?"

- Major Motoko Kusanagi, Ghost in the Shell

The internet is a virtual world which transcends boundaries of culture, religion, countries and thought. It is a parallel universe where each transaction, each reality has its virtual counterpart. In this virtual sphere of existence, rules and and norms applicable to the material world may not necessarily be efficiently operationalized in online transactions or inter-relations.

Electronic commerce laws try to establish rules and norms to govern online transactions, but despite the attempt to create a virtual government, the long arm of the law cannot reach every nook and cranny in this infinite universe of 1s and 0s. The concept of government and its functions cannot easily be constituted in a realm where everything is virtual. Who will be governed, how will they be governed and most importantly, who will govern them? Personas over the internet are represented by a mere succession of numbers (IP addresses). These IP addresses can easily be masked and merely point to a general location. Any attempt to discover the identities behind IP addresses tread dangerously on the right to privacy. Existing as it does in the virtual sphere, there are no clear cut territorial lines delineating jurisdiction.

Take one of the 3 inherent powers of any sovereign --- taxation. In ordinary transactions, especially transactions involving services, the situs of the transaction is paramount. The tax situs is the place where the service is rendered. What is the "place" where service is rendered in purely internet-based transactions? Sections 23 of the e-commerce act and Section 33 of its implementing rules try to address this virtual dilemma by pointing to the originator/addressee's "place of business" or usual/habitual residence. But this again begs the question, "Which address?" "Places" in the internet are merely represented by numbers. These numbers are easily masked. Not all businesses have brick and mortar offices and a lot merely exist unregistered in virtual space. Another issue would be the source principle of taxation. How does one tax a resident German national who sells webpage templates through a website whose domain name is registered in Tanzania? If the BIR cannot even efficiently collect taxes in the real world, the possibility of taxing online transactions proves to be a herculean task.

Random Thoughts on Cybercrime

Some thoughts on cybercrime:

> Conceptually, it is very timely since more and more people are getting connected through the Internet, and thus more and more transactions are being facilitated, perfected and consummated. Most of the time, the parties to the transactions do not even have to meet, see, hear or even speak to each other -- the Internet does all that for them. Thus, with all these cybertransactions taking place, people should have a legal recourse when any of their rights are violated -- especially when the violation is criminal in nature.

>However, here in the Philippines, the primary code which deals with penal offenses is Act No. 3815 or the Revised Penal Code -- of 1930! How archaic can a law get? Evidently, penal acts or omissions were not contemplated then when this code was drafted. Though the main elements of a crime may be present, cybercrimes have certain characteristics which are peculiar to the situation, which in turn makes the provisions of the Revised Penal Code inadequate to address such acts.

conVIRGINS: taste the possibilities

Convergence is the brainchild of innovation. Or sheer boredom.

Don't you just enjoy watching the home tv shopping network? Here's a food processor that slices, dices, peels, crisscuts and mashes. But wait!There's more! You can use it make your favorite egg salad without the hassle of peeling off the shell! All THAT for the low low LOW price of $4.99! The Japanese are an even more amusing lot. Which people in their right mind can think of inventing an umbrella that extends down to the ankles? A person with that same frame of mind also invented the internet.

Originally conceptualized as a defense network in the United States, the internet evolved into usenet groups for sharing information, and further evolved into the state where it is now: a global village, a world unto itself, cyberspace --- where you can do virtually what you do in real life. You can talk to people, order pizza, drive, watch your favorite show, own a pet and even... *gasp* fall in love!

Much like how cultures have a tendency to melt into each other (taglish, bollywood, latino rap, boondocks, michael jackson--he's black, he's white), convergence (in its techie sense) is an interlacing of technologies, --- a blurring of boundaries. New uses have been discovered for seemingly incompatible inventions. Take our favorite topic in class -- VoIP... calls made through phone lines from circuit switched to internet protocol. Revolutionary! Another case in point: p2p file sharing (napster, limewire, gnutella) from exchanging files to downloading bootleg music to a backdoor portal for hacking. Still revolutionary.

With the creation of a virtual world also came the infirmities of the real world--cybercrime. Despite that downside to the shiny concept of convergence, technology still evolves at a rapid pace (don't you just regret buying that laser disc player? Hehe), and its benefits outweigh its disadvantages. With the internet, we see technology imitating life imitating technology. Do you know that scientists say it may be possible for ODORS to be sent through the internet? Now THAT is convergence. Ü

In the immortal words of Madonna..."Like a virgin, touched for the very first time. Like a virgin... when your heart beats, next to mine..."

What has that got to do with CONVERGENCE? Well, nothing really... at least to our knowledge. Who knows, perhaps somewhere, somehow, someone... out of sheer boredom or a flash of inspiration, may know all along.

Oops there goes another rubber tree plant

The UNCITRAL model law, a suggested "pattern" for electronic commerce laws of participating countries, emphasizes the need for wide application and media-neutrality in order to cover all factual situations--- present and future--- wherein the electronic commerce law can apply. This intent is understandable given the rapid rate of growth and obsolescence of technology. However, UNCITRAL's wide application policy may run risks of being vague and overbroad, and thus, may not always facilitate the ease of international transactions.

And experience only teaches us that an overbroad law may be distorted in such a way that its application may run counter to its objectives. Case in point: no one expected the United States to take unilateral action on Iraq's alleged weapons of mass destruction, without UN's approval. And yet, in declaring a first-strike policy and adopting preemptive hostile action, the US found loopholes in the law to justify its unprovoked aggression. If the UN Security Council, the body governing international relations regarding force and warfare barely addressed the US' "good faith" interference, then one can hardly blame us for being skeptical about the broad application of the Model Law.

Section 37 of the E-Commerce Act of the Philippines, perhaps in keeping with this wide-application policy, provides for an interpretation which gives due regard to the law's international origin and need to promote uniformity in its application. Given its all-encompassing language, this clause seems to share the same infirmities of vagueness and overbreadth of the Model Law. It is also potentially conflicting, sicne even though it encourages wide application --- thereby espousing uniformity among nations, --- it also acknowledges each country's prerogative in enacting its own laws according to State policy.

The provision regarding the application of general principles of international law is nothing new. Weeks from the start of the first day of class, any freshman law student can tell you that general principles of international law form part of the law of the land. Our fear, unfounded as it may seem, is that we might be sacrificing our own state objectives all in the name of uniformity of application . Perhaps in our haste to conform to international laws, much of our ideals and independence as a nation have been compromised. Moreover, one cannot entirely brush away the pessimism borne of experience, that other countries might not necessarily follow the Model Law, given due regard to locally enacted laws.


There is nothing wrong with the desire to be bridged with legal systems and societies of differing technologies seamlessly, but as a rule, the country's E-Commerce law must be tailor-made to the many peculiarities attendant to its circumstances, and with enough safeguards to be in keeping with international standards as well. The Model Law should therefore, at best, serve as a mere framework for any country.

Anyway, the Electronic Commerce law is relatively new. There is no established jurisprudence yet on the matter. As for now, we can only hope that we don't end up being steamrolled by the objectives of the Model Law.

originality

While surfing, I came across a very interesting and amusing blog entry. To quote it in full:

left behind

I recently submitted some conference expenses for reimbursement. I transmitted the information electronically as the conference program, the airline ticket receipt and the lodging invoice were all electronic. I received a phone call that afternoon:

“I’m sorry, but we need the original documents.”
“These are the original documents.”
“I can’t take copies of conference programs and accounting will not accept these for your lodging and travel. I need the originals.”
“What do you mean?”
“They have to be original.”
“Can you define that? I’m not trying to be difficult but I really don’t know what you need because these are the originals. I don’t have original credit card receipts or anything like that.”
“Well, you’ll have to call the airline and get them to send you something. And this receipt
for the lodging, it needs to be in color or have a signature or something.”
“Ok, I’ll see what I can do.”

Later, me on the phone with Northwest Airlines:

“Yes, my institution needs an original receipt for my travel.”
“Don’t you have the e-ticket and receipt we sent you?”
“Yes, but that’s not original enough for them. Can you send me out something in paper?”
“We can but it will be exactly the same document and you will be assessed a fee.”
“Oh screw it. Thanks, though. I think I’ll just print what I have and fold it like it was in an envelope.”

(http://thethirdattempt.blogspot.com/2006/05/left-behind.html; 26
June 2006)

_______________

Whoever posted this blog entry probably isn’t the only person who has had this kind of a problem. All over the world, transactions are becoming more and more complex, and yet the actual processing of those transactions take significantly less time than before – all thanks to electronic commerce, more popularly known as e-commerce. Because technology is improving at an amazingly fast pace, in theory, people should be able to transact business with considerable ease… however, as the blog above has shown, there are extant gaps and discrepancies, especially in the implementation of the rules on e-commerce, which prevent business transactions from proceeding in the desired pace.

In this field, the quintessential question has been, “What is an original document?” The concept of originality with respect to documents used to be simple… since there were no copiers back then; every document had to be executed by the person himself – making each and every document an original. Probably during this time, little dispute arose as to whether a document was original or not. When the copier was invented, the concept of originality of a document became more contentious, and distinction was made between the “original” and a mere “copy” of it. This distinction, however, could be easily made, since it can be readily seen whether the document is indeed an original or a copy – the original was written or executed in the “original medium (usually ink, typewriter ribbon), while the copy/ies were either carbon copies, or photocopies (with the birth of the photocopier). It was relatively easy to tell which was which. Now, with electronic documents, the distinction is again, blurred. True, with electronic documents, transacting is made so much easier due to the speed ad convenience it offers, but a problem arises as to originality and authenticity – and as illustrated by the blogger’s dilemma above, it can also hamper commercial transactions.

Originality as a concept may vary. The more common conception of originality is illustrated in the above discussion, which is strict in a sense because there is no flexibility in it; it’s either original or not. Another conception of originality can be as to identity of content. This is the conception used in our Rules of Evidence. The Rules state that “the original of a document is one the contents of which are the subject of inquiry [Rule 131, Section 4(a)]. Given this definition of an “original” document, for evidentiary purposes, a copy can actually be an original, since the basis of originality is the content of the document.

Basically, the problem is that despite advances in technology and communication, specifically in business transactions, the idea of people with respect to what “original documents” are has still not progressed. Yes, the technology is already there, ready and available to be utilised, but its use is not being maximised precisely because of this problem. At this point in time, though there are already laws and Rules recognising and protecting electronic documents, it still does not have the same “trust value” which paper documents possess. When it comes to safety and authenticity, I guess paper documents appeal more to the senses.

What is really needed here is time; time for people to adapt to the idea of totally doing business electronically, with almost no paper transactions.