THERE could soon be a legal basis to the claim of former senator Ferdinand “Bongbong” Marcos of fraud during the May 9, 2016 vice presidential elections.
The Department of Justice (DOJ) on Wednesday charged employees of voting machine provider Smartmatic and the Commission on Elections (Comelec) for changing the script in the transparency server on election night without authorization.
Charged were Marlon Garcia, Smartmatic head of technical support and his subordinates Neil Baniqued and Mauricio Herrera, as well as Comelec information technology experts Rouie Peñalba, Nelson Herrera and Frances Mae Gonzales, for violating Sections 4(a)(1), (3) and (4) of Republic Act (RA) 10175 or the Cybercrime Prevention Act.
The 41-page resolution was signed by Justice Undersecretary Deo Marco, for Justice Secretary Vitaliano Aguirre 2nd.
Section 4 (a)(1) of RA 10175 penalizes the access of a computer system without any authority while Section 3 penalizes the intentional and reckless altering of computer data. Section 4 penalizes the act of hindering or interfering with the functions of a computer and computer network by inputting, deleting and altering computer data and programs, without any right or authority.
“The Office of the City Prosecutor of Manila is directed to file the necessary Information for violations of Sec. 4(a)(1), (3) and (4) of the Cybercrime Prevention Act against respondents before the appropriate court/s and to report the action taken within ten (10) days from receipt, hereof,” the DoJ resolution stated.
The case was elevated to the DoJ by former Abakada party-list representative Jonathan de la Cruz, after it was dismissed by the Manila Prosecutor’s Office.
De la Cruz claimed that shortly after the unauthorized alteration of the script of the transparency server that released voting results to the media, the lead of Marcos over Vice President Maria Leonor “Leni” Robredo started to taper at a uniform rate, which experts said was statistically impossible. This went on until the wee hours of the morning, until Marcos’ huge lead of over one million votes eventually dwindled.
The DoJ ruled that the respondents failed to secure the required authorization from the Comelec en banc before changing the script in the transparency server, supposedly to correct the spellings of some candidates’ names.
It also pointed out that there was sufficient evidence to indict them for the unauthorized change in the system of the transparency server, as Smartmatic’s Garcia himself admitted that he made the change in the script as advised by Herrera.
“Marlon Garcia, himself, admitted that he made the change in the script of the transparency server as advised by Mauricio Herrera. Notably, it was [Comelec information technology expert] Rouie Peñalba who notified the Smartmatic personnel,” it stated.
The DOJ resolution further said Peñalba could not absolve himself of the crime because of his inconsistent statements: at first he admitted that he had instructed Garcia to change the system, and then he changed his tune and claimed that Smartmatic was authorized to access the system.
The DoJ rejected the claim of Smartmatic that what was carried out was merely a “cosmetic change” that did not affect the elections. The Justice department explained that RA 10175 is a special law and as such, did not require criminal intent.
By law, criminal intent is not necessary “where the acts are prohibited by reason of public policy, the mere perpetration thereof, constitute an offense against the confidentiality, integrity, and availability of computer data and systems. When the doing of the act is prohibited by law, it is considered injurious to public welfare, and the
doing of the prohibited act is the crime itself.”
“[I]t was established that the respondents were able to access the transparency server to change the name without notifying the Comelec en banc,” the resolution stated.
“It must be noted that the Comelec IT personnel assigned at the PPCRV center had no authority to allow any Smartmatic personnel to tweak the transparency server. As a result thereof, the hash codes failed to match.
However, despite the said alteration, said fact was not announced until after the lapse of 24 hours when the parties were alerted of said fact,” it added.
The DOJ also junked Smartmatic’s argument that the Protocol of Escalation, which involved contingency matters for escalation in particular levels of severity, gave them authority to decide by themselves the course of action to be taken in case of glitches in the system.
It stated that the “Protocol of Escalation “require[d]Smartmatic personnel to report on any issue regardless of level (severity or intensity) to a Comelec personnel or official.” It said “it is only the designated Comelec personnel or official which may undertake any decision thereon.”
Charges filed against Smartmatic project director Elie Moreno, however, were dismissed for lack of evidence.