New Anti-espionage Act

Sriate Offior of ihe Screetary TWENTIETH CONGRESS OF THE REPUBLIC OF THE PHILIPPINES 25 AUG 20 P5:40 First Regular Session RECEIVED BY: SENATE S. No. 1246 Introduced by Senator Ronald "Bato" Dela Rosa AN ACT DEFINING AND PENALIZING ESPIONAGE AND OTHER OFFENSES AGAINST NATIONAL SECURITY EXPLANATORY NOTE The Philippines relies on Commonwealth Act No. 616, a legal framework against espionage that was crafted in 1941 during the Commonwealth when threats were limited to wartime military activity. Eight decades later, the law on anti-espionage remained untouched and stagnated, leaving our national defense posture vulnerable to the current geopolitical realities and rapid technological advancements. This proposed measure seeks to define and penalize the act of espionage to include modern methods of intelligence gathering and sabotage. It will include those committed using cyber or those digital technologies, computer or computer network, data and the electronic medium in which online communication takes place. It further provides for the legal protection of national defense assets including premises, materials, and utilities. In order to effectively combat espionage, the bill also grants law enforcement and military authorities court-supervised surveillance powers with clear procedural safeguards, ensuring both the security of the State and the protection of constitutional rights.

There is wisdom in amending this antiquated law on espionage considering that that same is not just a crime but is actually an act of betrayal. Hence, those who engage in it, whether foreign or Filipino, must be held fully accountable to the fullest extent. Through this bill, we provide our country's defenders, both in uniform and in government, the legal arsenal they need to outpace those who seek to compromise our sovereignty. For the above reasons, the passage of this bill is earnestly sought. RONALD "BATO" DELA ROSA

Senair Offier of tie Ecretarp TWENTIETH CONGRESS OF THE ) REPUBLIC OF THE PHILIPPINES ) 25 AUG 20 P5:40 First Regular Session SENATE RECEIVED BY: 1246 S. No. Introduced by Senator Ronald "Bato" Dela Rosa AN ACT DEFINING AND PENALIZING ESPIONAGE AND OTHER OFFENSES AGAINST NATIONAL SECURITY Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

Section 1. Short Title. - This Act shall be known as the "New Anti-Espionage

2 Act."

Sec. 2. Declaration of Policy. - It is a declared policy of the State that paramount

4 consideration shall be given to its national sovereignty, territorial integrity, national 5 interest, and the right to self-determination. The State recognizes that espionage is inimical to its sovereignty and democracy. Further, the fight against espionage, 7 clandestine acquisition of sensitive information and unlawful obtaining of classified 8 information that affect the national security or national defense requires a 9 comprehensive approach. To this end, the State shall adopt and implement effective measures to combat and prevent espionage to protect and promote national security and interests.

Sec 3. Definition of Terms. - As used in this Act:

a) Classified matter refers to information or materials in whatever nature or form, that is designated as classified for national security purposes. It includes everything classified under any issuance or legislation concerning the security classification of matters and information;

b) Critical infrastructure refers to assets, systems, public works and networks, including but not limited to transportation, utilities, digital systems and information and communications technology, whether physical or virtual, that are considered vital and their destruction or disruption would have a debilitating impact on national security, health and safety, or economic well-being of citizens, or any combination thereof; c) Cyber refers to digital technologies, computer or computer network, data and the electronic medium in which online communication takes place; d) National Defense refers to the mechanism of the State to marshal a nation's forces and resources to protect national interests, sovereignty and territorial integrity and respond to threats thereto; e) National defense assets refer to the following premises, materials, and utilities used by the Armed Forces of the Philippines, including its auxiliaries: 1) National defense premises shall include but are not limited to, all buildings, grounds, mines, missile launch facilities, data centers, communication and information facilities, or other places where national defense material is produced, manufactured, repaired, stored, mined, extracted, distributed, loaded, unloaded, or transported, together with all machinery and appliances contained therein; where communications and data are processed, stored, transmitted, connected, and coordinated; where missiles are stored, assembled, and operated; and all ports, arsenals, navy yards, prisons, camps, or other army, naval, or air stations; 2) National defense materials shall include satellite and other intelligence, surveillance and reconnaissance systems, arms, weapon system, munition, missile, livestock, clothing, food, or fuel, communications, codes, formulas, gadgets, computers, communication devices, and shall also include supplies and all other articles of whatever description, and any part or ingredient thereof, intended for, adapted to,

or suitable for the use of the Philippines in connection with national defense; and 3) National defense utilities shall include all railroads, railways, electric lines, roads of whatever description, railroad or railway fixture, canal, lock, wharf, pier, dock, bridge, building, structure, engine, machine, mechanical contrivance, car, vehicle, boat, or aircraft, or any other means of transportation whatsoever, whereon or whereby such national defense materials or any troops of the Philippines are being or may be transported either within the limits of the Philippines or upon the high seas; and all dams, reservoirs, aqueducts, water and gas mains, oil or gasoline stations, pipes, structures, and buildings, whereby or in connection with which water, or gas, or oil, or gasoline, or other fluid is being furnished, or may be furnished to national defense premises and all electric light and power, steam or pneumatic power, telephone, and telegraph plants, poles, wires, facilities, fiber optic infrastructures, antennas, base transceiver stations, data centers, satellites, and fixtures and wireless stations, and the buildings connected with the maintenance and operation thereof used to supply water, light, heat, gas, oil, gasoline, fluid, power, or facilities of communication to national defense premises; f) National security refers to a state or condition in which the people's welfare, well-being, ways of life, government and its institutions, territorial integrity, sovereignty, and core values are protected and enhanced; g) National Security Facility refers to a building, installation or area housing classified or sensitive information, materials, or equipment, and is protected by security measures to prevent unauthorized access of classified information; h) Person refers to any natural and juridical persons unless the context indicates otherwise; and i) Prohibited Place refers to a land, building, airspace, maritime domain, systems, network, cyberspace or any area designated by the President or the

President's authorized representative, or the Secretary of National Defense as such to protect the security, safety and interests of the State.

Sec. 4. Espionage. - Espionage is committed by any person who, within or

4 outside the Philippines, deals with classified matters without authority, through physical, electronic, cyber, or any other means, which causes or has intent to cause 6 injury to the Philippines or gives or tends to give advantage to a state, nation, entity 7 or individual, whether foreign or domestic. Dealing with a classified matter shall mean receiving, obtaining, collecting, 9 possessing, processing, recording, copying, reproducing, disclosing or communicating, 10 publishing, delivering, transferring, transmitting, making available, concealing, 11 intercepting, interfering, selling, procuring, buying, altering, compromising or 12 destroying its integrity, or allowing classified information under one's custody to be 13 removed from its proper place, delivered, communicated, transmitted, or disclosed to 14 an unauthorized person, stolen, abstracted, intercepted or compromised. Any person who accesses any sketch, drawing, map, layout, blueprint, 16 graphical or muitimedia representation of critical infrastructure, prohibited place, or national defense assets, without authority shall also be held liable for espionage: Provided, That only the President or the President's authorized representative, or the Secretary of National Defense, as the case may be, may grant authorization to enter 20 or deal with representations of prohibited places and national defense premises. Any person who makes or assists in making a false declaration or statement for the purpose of obtaining authorization from a competent authority shall be presumed guilty of this offense. Possession of a classified matter by an unauthorized person shall be prima facie evidence of disclosure against the person who, by reason of his official functions, is in custody of said classified matter. Any person who commits the aforementioned acts shall suffer the penalty of life imprisonment without the benefit of parole and the benefits provided in Articles 29, 94, 29 97, 98 and 99 of Act No. 3815, or the "Revised Penal Code" as amended

1 by Republic Act No. 10592 and by a fine of not less than Twenty million pesos (Php 2 20,000,000.00) but not more than Fifty million pesos (Php 50,000,000.00).

Sec. 5. Conspiracy to Commit Espionage. - Conspiracy to commit espionage as

4 defined in Section 4 hereof shall be penalized with life imprisonment without the 5 benefit of parole and the benefits provided in Articles 29, 94, 97, 98 and 99 of Act No. 6 3815, or the "Revised Penal Code" as amended by Republic Act No. 10592 and by a 7 fine of not less than Twenty million pesos (Php20,000,000.00) but not more than Fifty 8 million pesos (Php50,000,000.00). There is conspiracy when two (2) or more persons 9 come to an agreement concerning the commission of espionage as defined in Section 10 4 hereof and decide to commit the same.

Sec. 6. Proposal to Commit Espionage. - Any person who proposes to commit

12 espionage as defined in Section 4 hereof shall suffer the penalty of ten (10) to twelve 13 (12) years imprisonment and by a fine of not less than Ten million pesos (Php 14 10,000,000.00) but not more than Twenty million pesos (Php 20,000,000.00). There is a proposal when the person who has decided to commit espionage proposes its 16 execution to some other person or persons.

Sec. 7. Acts of destruction, interference, and obstruction. - It shall be unlawful

for any person to cause or attempt to cause destruction, interference, or obstruction 19 to the government's activities against threats to national defense and national security 20 by: a) making or causing to be made, or attempting to make or cause to be made any national defense or national security material in a defective manner, including those used or employed in the making, producing, manufacturing, or repairing of such materials; or b) destroying or attempting to destroy any national defense assets. Any person found to be in violation of this provision shall suffer the penalty of ten (10) to twelve (12) years imprisonment and a fine of not less than Ten million pesos (Php 10,000,000.00) but not more than Twenty million pesos (Php 20,000,000.00).

Sec. 8. Disloyal Acts or Words Affecting National Defense, National Security,

2 and Critical Infrastructure. - It shall be unlawful for any person to commit any of the following acts to any member of the government or any institution or entity whose 4 function is critical to the preservation and promotion of national defense and national 5 security, or protection of critical infrastructure: a) incite, coerce, deceive, or otherwise cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the aforementioned entities; b) distribute any material or information that incites, coerces, deceives, or causes insubordination, disloyalty, mutiny, or refusal of duty by any member of the aforementioned entities; c) make, disseminate or convey false reports, information or statements causing interference with or obstruction to the operation or success of the government, particularly in matters relating to national security or defense, or to promote the success of enemy forces; or, d) obstruct the recruitment or enlistment efforts of the military or the uniformed personnel during armed conflict. Any person found to be in violation of this provision shall suffer the penalty of ten (10) to twelve (12) years imprisonment and a fine of not less than Ten million pesos (Php 10,000,000.00) but not more than Twenty million pesos (Php 20,000,000.00).

Sec. 9. Unlawful Possession or Control of Surveillance or Mapping Equipment -

22 It shall be unlawful for any person to possess or control any surveillance system or equipment, including but not limited to cameras, listening or tracking devices, or any other technological means for the purpose of surveilling, monitoring, or spying on government officials, military personnel, or individuals involved in national security or defense activities, prohibited places, critical infrastructure, national defense assets or making a map related thereto. Any person found to be in violation of this Section shall 28 suffer the penalty of ten (10) to twelve (12) years imprisonment and a fine of not less than Ten million pesos (Phpl0,000,000.00) but not more than Twenty million pesos (Php 20,000,000.00).

Sec. 10. Abetting or Aiding. - Any person who abets or aids another to commit

2 any of the offenses defined and penalized under this Act shall suffer the penalty of 3 ten (10) to twelve (12) years imprisonment and a fine of not less than Ten million 4 pesos (Php 10,000,000.00) but not more than Twenty million pesos (Php 5 20,000,000.00).

Sec. 11. Harboring, Concealing or Facilitating the Escape of Violators of the

7 Law. - Harboring, concealing or facilitating the escape of a person whom one knows, 8 or has reasonable ground to believe or suspect, has committed, or is about to commit, 9 any of the offenses defined and penalized under this Act shall suffer the penalty of 10 ten (10) to twelve (12) years imprisonment and a fine of not less than Ten million pesos (Phpl0,000,000.00) but not more than Twenty million pesos (Php 20,000,000.00).

Sec. 12. Liability of Government Officials and Employees, Military Officers and

Personnel, Foreigners and Juridical Entities. - A government official or employee found 15 guilty of committing any of the offenses punishable under this Act shall suffer absolute perpetual disqualification from any public office and the maximum penalty provided in 17 this Act. Military officers and personnel charged with violations under this Act shall be 19 tried by General Courts-Martial under Commonwealth Act No. 408 or the "Articles of 20 War," as amended. Foreigners found guilty of committing any offense punishable herein shall, in addition to the penalties prescribed under this Act, be deported immediately without further proceedings after the service of sentence and be permanently barred from entering the country. The partner, president, director, manager, trustee, administrator or officer of any juridical entity who consents to, knowingly tolerates or, due to negligence, fails to prevent the commission of a violation of this Act shall be held liable. In addition to the payment of fine by the juridical entity, its registration and license to operate with the appropriate government authorities shall be cancelled and revoked permanently, as ordered by the Court, without prejudice to the imposition of sanctions pending trial.

Sec. 13. Designation of Prohibited Places by Proclamation. - For purposes of

2 this Act, the President or the President's duly authorized representative, or the 3 Secretary of National Defense, as the case may be, may designate prohibited places 4 where military or classified activities, matters or information relative to defense and 5 national security are conducted, prepared, manufactured, processed, used, or stored 6 indicating the reason for such designation. National defense premises and national security facilities as defined herein shall 8 be considered prohibited places without need of such proclamation.

Sec. 14. Classification and Custody of Classified Matters During Inquiry,

10 Investigation and Prosecution. - All inquiries, investigations, and prosecutions related 11 to espionage, including any related documents, evidence, proceedings, and 12 communications, shall be classified according to the security sensitivity of the matter 13 involved. Such classified matters shall be handled in accordance with the existing and subsequent guidelines in the handling of classified matters and shall only be accessible 15 to individuals with the requisite security clearance and on a need-to-know basis. Access to any material or information pertaining to espionage inquiries, 17 investigations, or prosecutions shall be strictly limited to authorized persons whose 18 duties require such access, including law enforcement, intelligence officers, military 19 officials, judicial authorities, and personnel directly involved in the conduct of the 20 investigation or prosecution. Any unauthorized disclosure, dissemination, or sharing 21 of classified information related to espionage cases shall be subject to penalties as 22 provided under Section 4 of this Act. The Department of Justice (DOJ) and Office of the National Security Adviser shall ensure the proper classification, safeguarding, and control of such sensitive information, including establishing procedures for access, review, and declassification, where appropriate.

Sec. 15. Surveillance of Suspects and Interception and Recording of

Communications. - The provisions of Republic Act No. 4200, otherwise known as the 29 "Anti-Wiretapping Law" to the contrary notwithstanding, a military personnel, law 30 enforcement agent, or intelligence officer duly authorized by their respective heads of

1 the agency may, upon written order of the Regional Trial Court where any of the 2 elements for the violation of this Act has been committed or about to be committed, 3 wiretap, overhear, and listen to, intercept, screen, read, surveil, record or collect, with 4 the use of any mode, form, kind or type of electronic, mechanical or other equipment 5 or device or technology now known or may hereafter be known to science or with the 6 use of any other suitable ways and means for the above purposes, any private 7 messages in whatever form, kind or nature, spoken or written words any person charged or suspected of committing any of the offenses defined and penalized under 9 this Act: Provided, That such written order shall only be issued or granted upon written 10 application and the examination under oath or affirmation of the applicant and the witnesses one may produce and a showing that there are: (1) reasonable grounds to believe that any of the crimes enumerated herein has been committed or is being committed or is about to be committed; (2) reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and (3) no other means readily available for obtaining such evidence. The law enforcement agent, military personnel, or intelligence officer shall (1) file an ex' parte application with the Regional Trial Court, where the telecommunications service providers (TSPs) and internet service providers (ISPs) are situated, for the issuance of an order, to compel TSPs and ISPs to produce all customer information and identification records as well as call and text data records, content and other cellular or internet metadata of any person suspected of any of the crimes defined and penalized under the provisions of this Act; and (2) furnish the National Telecommunications Commission (NTC) with a copy of said application. The NTC shall 26 be notified by the court upon the issuance of the order to ensure immediate 27 compliance.

Sec. 16. Forfeiture of Materials and Effects. - Upon conviction for any offense

under this Act, all materials and effects directly used or intended to be used in the

1 commission of such offense may be subject to forfeiture in favor of the government 2 and disposed of in accordance with applicable laws, regulations, and procedures.

Sec. 17. Extraterritorial Application. - The provisions of this Act shall apply to

4 any person, who commits any of the offenses defined and penalized under this Act, 5 regardless of the stage of the commission of the offense, within or outside the 6 territorial jurisdiction of the Philippines.

Sec. 18. Implementing Rules and Regulations. - The Department of National

8 Defense, the DOJ, and the National Intelligence Coordinating Agency shall within one 9 hundred twenty (120) days from the effectivity of this Act, promulgate the rules and 10 regulations to effectively implement the provisions of this Act.

Sec. 19. Separability Clause. - If any portion or provision of this Act is declared

12 unconstitutional, the remainder of this Act or any provisions not affected thereby shall 13 remain in full force and effect.

Sec. 20. Repealing Clause. - Article 117 of the Revised Penal Code and

15 Commonwealth Act No. 616 are hereby repealed. All other laws, decrees, executive 16 orders, letters of instruction, proclamations, or administrative regulations that are 17 inconsistent with the provisions of this Act are hereby repealed, amended or modified 18 accordingly.

Sec. 21. Effectivity. -This Act shall take effect after fifteen (15) days following

20 its complete publication in the Official Gazette or a newspaper of general circulation. Approved,