New Anti-espionage Act

TWENTIETH CONGRESS OF THE REPUBLIC OF THE PHILIPPINES First Regular Session 25 JUL 15 P5:17 SENATE Senate Bill No. Introduced by Senator Juan Miguel "Migz" F. Zubiri AN ACT DEFINING AND PENALIZING ESPIONAGE AND OTHER OFFENSES AGAINST NATIONAL SECURITY EXPLANATORY NOTE Driven by technological advancements and emerging threats in cyberspace and global surveillance networks, the security landscape in the 21st century has immensely evolved. Espionage, once limited to wartime intelligence gathering and clandestine operations, now extends to cyber intrusions, unauthorized access to critical, digital and information infrastructure, and the exploitation of sensitive information that could compromise national defense and security, and the overall sovereignty of the state. Article 17 ofthe is realing lastin espionage in on ealth 3 No. 616 and -, respectively are rendered outdated and ineffective in deterring contemporary forms of espionage. Over eight decades since, these laws are no longer responsive to the complexities of modern espionage activities with their limited scope, minimal penalties, and lack of provisions addressing cyber-enabled threats. To affirms the State's constitutional duty to protect its people and secure the integrity of its institutions against both traditional and non-traditional security threats, this bill seeks to introduce a more comprehensive legal framework to address espionage in all its forms. The bill clearly enumerates acts that constitute espionage, including conspiracy and attempts to commit such acts, and imposes significantly higher penalties in recognition of the grave consequences espionage can have on national security. It also establishes procedures for the lawful interception of communications to ensure a balance between effective law enforcement and the protection of individual rights. In addition, the bill provides for extraterritorial application, accountability of government officials and employees, military officers and personnel, and foreigners and juridical entities, as well as the forfeiture of instruments used in the commission of offenses. Given the alarming rise in foreign intelligence operations and cyber threats, the immediate passage of this measure is earnestly sought. JUAN MIGUEL "MIGZ" F. ZUBIRI

TWENTIETH CONGRESS OF THE REPUBLIC OF THE PHILIPPINES First Regular Session 25 JUL 15 P5:17 SENATE RECEIVED BY: Senate Bill No. Introduced by Senator Juan Miguel "Migz" F. Zubiri 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

4 paramount consideration shall be given to its national sovereignty, territorial integrity, 5 national interest, and the right to self-determination. The State recognizes that espionage 6 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 comprehensive 9 approach. To this end, the State shall adopt and implement effective measures to combat 10 and prevent espionage to protect and promote national security and interests. In the 11 implementation of the policy stated above, the State shall uphold the basic rights and fundamental liberties of the people as enshrined in the Constitution.

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; 9) 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 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

outside the Philippines, deals with classified matters without authority, through physical, electronic, cyber, or any other means, which causes or has intent to cause injury to the Philippines or gives or tends to give advantage to a state, nation, entity or individual, whether foreign or domestic. Dealing with a classified matter shall mean receiving, obtaining, collecting, possessing, processing, recording, copying, reproducing, disclosing or communicating, publishing, delivering, transferring, transmitting, making available, concealing, intercepting, interfering, selling, procuring, buying, altering, compromising or destroying its integrity, or allowing classified information under one's custody to be removed from its proper place, delivered, communicated, transmitted, or disclosed to an unauthorized person, stolen, abstracted, intercepted or compromised. Any person who accesses any sketch, drawing, map, lay out, blueprint, graphical or multimedia 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 34 National Defense, as the case may be, may grant authorization to enter 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 2 the purpose of obtaining authorization from a competent authority shall be presumed 3 guilty of this offense. Possession of a classified matter by an unauthorized person shall be prima facie 5 evidence of disclosure against the person who, by reason of his official functions, is in 6 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, 9 29 97, 98 and 99 of Act No. 3815, or the "Revised Penal Code" as amended by Republic 10 Act No. 10592 and by a fine of not less than Twenty million pesos (Php20,000,000.00) but not more than Fifty million pesos (Php50,000,000.00).

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

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

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

espionage as defined in Section 4 hereof shall suffer the penalty of ten (10) to twelve (12) years imprisonment and by a fine of not less than Ten million pesos (Phpl0,000,000.00) but not more than Twenty million pesos (Php20,000,000.00). There is proposal when the person who has decided to commit espionage proposes its 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 to the government's activities against threats to national defense and national security 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 (Phpl0,000,000.00) but not more than Twenty million pesos (Php20,000,000.00).

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

4 Security, and Critical Infrastructure. - It shall be unlawful for any person to commit 5 any of the following acts to any member of the government or any institution or entity 6 whose function is critical to the preservation and promotion of national defense and national 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 14 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 (Phpl0,000,000.00) but not more than Twenty million pesos (Php20,000,000.00).

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

Equipment. - 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 26 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 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 (Php20,000,000.00).

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

any of the offenses defined and penalized under this Act shall suffer the penalty of ten (10) to twelve (12) years imprisonment and a fine of not less than Ten million pesos 35 (Phpl0,000,000.00) but not more than Twenty million pesos (Php20,000,000.00).

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

2 the Law. - Harboring, concealing or facilitating the escape of a person whom one knows, 3 or has reasonable ground to believe or suspect, has committed, or is about to commit, any of the offenses defined and penalized under this Act shall suffer the penalty of ten 5 (10) to twelve (12) years imprisonment and a fine of not less than Ten million pesos 6 (Phpl0,000,000.00) but not more than Twenty million pesos (Php20,000,000.00).

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

8 Officers and Personnel, Foreigners and Juridical Entities, - A government official 9 or employee found guilty of committing any of the offenses punishable under this Act shall suffer absolute perpetual disqualification from any public office and the maximum 11 penalty provided in this Act. Military officers and personnel charged with violations under this Act shall be tried 13 by General Courts-Martial under Commonwealth Act No. 408 or the "Articles of 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

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

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

Investigation and Prosecution. - All inquiries, investigations, and prosecutions related to espionage, including any related documents, evidence, proceedings, and communications, shall be classified according to the security sensitivity of the matter

1 involved. Such classified matters shall be handled in accordance with the existing and 2 subsequent guidelines in the handling of classified matters and shall only be accessible to individuals with the requisite security clearance and on a need-to-know basis. Access to any material or information pertaining to espionage inquiries, 5 investigations, or prosecutions shall be strictly limited to authorized persons whose duties 6 require such access, including law enforcement, intelligence officers, military officials, 7 judicial authorities, and personnel directly involved in the conduct of the investigation or prosecution. Any unauthorized disclosure, dissemination, or sharing of classified 9 information related to espionage cases shall be subject to penalties as provided under 10 Section 4 of this Act. The Department of Justice (DOJ) and Office of the National Security Adviser shall 12 ensure the proper classification, safeguarding, and control of such sensitive information, including establishing of 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 "Anti-Wiretapping Law" to the contrary notwithstanding, a military personnel, law enforcement agent, or intelligence officer duly authorized by their respective heads of the agency may, upon written order of the Regional Trial Court where any of the elements for the violation of this Act has been committed or about to be committed, wiretap, overhear, and listen to, intercept, screen, read, surveil, record or collect, with the use of any mode, form, kind or type of electronic, mechanical or other equipment or device or technology now known or may hereafter be known to science or with the use of any other suitable ways and means for the above purposes, any private messages in whatever form, kind or nature, spoken or written words any person charged or suspected of committing 26 any of the offenses defined and penalized under this Act: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses one may produce and a showing that there are: a) reasonable grounds to believe that any of the crimes enumerated herein has been committed or is being committed or is about to be committed; b) 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 c) no other means readily available for obtaining such evidence.

The law enforcement agent, military personnel, or intelligence officer shall (1) file 2 an ex parte application with the Regional Trial Court, where the telecommunications 3 service providers (TSPs) and internet service providers (ISPs) are situated, for the 4 issuance of an order, to compel TSPs and ISPs to produce all customer information and 5 identification records as well as call and text data records, content and other cellular or 6 internet metadata of any person suspected of any of the crimes defined and penalized 7 under the provisions of this Act; and (2) furnish the National Telecommunications 8 Commission (NTC) with a copy of said application. The NTC shall be notified by the court 9 upon the issuance of the order to ensure immediate compliance.

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

11 under this Act, all materials and effects directly used or intended to be used in the commission of such offense may be subject to forfeiture in favor of the government and disposed of in accordance with applicable laws, regulations, and procedures.

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

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

Sec. 18. Implementing Rules and Regulations. - Within one hundred twenty

(120) days from the effectivity of this Act, the Department of National Defense, the DOJ, and the National Intelligence Coordinating Agency shall formulate the necessary rules and regulations to ensure the efficient and effective implementation of this Act.

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

unconstitutional, the remainder thereof not otherwise affected shall remain in full force and effect.

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

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

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

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