Smartmatic execs, Comelec staff answer Marcos camp’s cybercrime raps

Officials of technology provider Smartmatic-Total Information Management and employees of the Commission on Elections on Friday responded to cybercrime charges hurled against them by the camp of Senator Ferdinand "Bongbong" Marcos.

Through their lawyers, Smartmatic technical support team head Marlon Garcia, Smartmatic project director Elie Moreno, technical support team member Neil Banigued, Comelec information technology officer Rouie Penalba, and Comelec employees Nelson Herrera and Frances Mae Gonzalez filed their respective counter-affidavits with the Manila Prosecutor's Office.

Smartmatic's Mauricio Herrera, another respondent, is not in the Philippines and was unable to file a counter-affidavit.

But Manila City Prosecutor Rector Macapagal said Smartmatic's lawyer "manifested that respondent Herrera will be adopting the counter-affidavit of his co-respondents and that the counter-affidavit will be either subscribed before the consul or by ordinary notary public."

The complainant, Marcos' campaign adviser and Abakada party-list Representative Jonathan dela Cruz, was directed to submit a reply during the resumption of the hearing on July 4 at 1:30 p.m.

Macapagal said the camp of the respondents from Comelec had also requested to be furnished copies of the counter-affidavit that would later be submitted by Mauricio Herrera.

"Ang maiisip natin dun, they want a copy para siguro hindi sila maging inconsistent sa kanilang position. Considering they are co-respondents. Just maybe baka makatulong sa kanila iyon, sa research nila kung ano man ang sasabihin nila," the prosecutor told GMA News Online in an interview.

In his complaint, Dela Cruz accused the respondents of committing a security breach in the Automated Election System in the May 9 elections, particularly in the script of the transparency server, "compromising the integrity and credibility of the 2016 elections, in addition to the confidentiality, integrity and availability of computer data and system."

Dela Cruz said the Smartmatic officers' actions violated Sections 4(a)(1), (3), and (4) of Republic Act No. 10175.

The particular violations are defined by the law as:

    (a) Offenses against the confidentiality, integrity and availability of computer data and systems:

    (1) Illegal Access. – The access to the whole or any part of a computer system without right.

    (3) Data Interference. — The intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document, or electronic data message, without right, including the introduction or transmission of viruses.

    (4) System Interference. — The intentional alteration or reckless hindering or interference with the functioning of a computer or computer network by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data or program, electronic document, or electronic data message, without right or authority, including the introduction or transmission of viruses.

Macapagal said this is not the first time he has handled a complaint involving violations of the Cybercrime Law, which President Benigno Aquino III signed into law in September 2012.

"But this is the first time that a direct challenge involving specific provisions of the Cybercrime Prevention Law is involved," Macapagal said.

He described the case filed by dela Cruz as "serious because it involves personalities who are hot entities."

The supposed "security breach" that the complainant was referring to was when Smartmatic made an adjustment to the script to fix an issue involving the "Ñ" character being replaced by "?".

After learning that the data package in the script contained a special character "?" in the name of the candidate, Garcia said they made the necessary "cosmetic change" on the script to correct the error.

Garcia had said that there was no longer any need to notify the Comelec chairman and commissioners about the modification he made, saying: "There are just certain matters that need to be escalated to en banc."

Comelec Commissioner Rowena Guanzon, however, said that the Smartamtic should have notified the poll body about the modification made in the script of the transparency server.

Even assuming that the script change did not affect the unofficial tally, Dela Cruz said that the respondents still cannot escape criminal liability since they did it without authority from the Comelec.

The Marcos camp has a pending complaint with the Comelec against Moreno, Garcia, Banigued and Peñalba for violation of the Automated Election Law, still in connection with the unauthorized script change.

Marcos had been insinuating that the introduction of the new script in the Comelec servers might have affected the counting of votes, pointing out that it was after the incident that his lead of over one million votes against closest rival, Camarines Sur Rep. Leni Robredo, began to diminish until she overtook him past 3 a.m. on May 10. —NB, GMA News