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DOJ indicts Comelec, Smartmatic staff for 2016 quick count script change

The Department of Justice (DOJ) has ordered the filing of criminal cases in court against personnel of the Commission on Elections (Comelec) and poll technology provider Smartmatic in relation to the script change in the transparency server during the May 2016 polls.

In a resolution dated June 2, Justice Undersecretary Deo Marco found probable cause against Smartmatic's Marlon Garcia,  head of technical support team, and his subordinates Neil Baniqued and Mauricio Herrera for violation of Sections 4(a)(1), (3) and (4) of Republic Act 10175 or the Cybercrime Prevention Act.

Also found liable were Comelec information technology experts Rouie Peñalba, Nelson Herrera and Frances Mae Gonzales.

The complaint filed against Smartmatic project director Elie Moreno, meanwhile, was dismissed for lack of evidence.

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, on the other hand, 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 Comelec had admitted the script of the transparency server, which hosts the unofficial election results, was tweaked on the night of election day, May 9, 2016, but only to correct the “?” character into “ñ” that appeared in the names of some candidates.

The poll body also maintained that the script change did not affect the results.

Still, the DOJ said the respondents committed an illegal act for failing to secure the required authorization from the Comelec en banc before changing the script in the transparency server stationed at Pope Pius Center in Manila.

"[I]t was established that the respondents was 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.

For the DOJ, whether or not the script change caused "material damage" is "immaterial" as the "perpetration of the acts, without right or authority, constitute an offense against the confidentiality, integrity, and availability of computer data and systems."

"In any case, it is deemed best for said issues to be resolved and threshed out at the trial proper," the resolution stated.

The complaint filed by former Abakada Rep. Jonathan Dela Cruz had reached the DOJ after the Manila Prosecutor's Office ruled in September last year that there was no evidence that they committed the script change in bad faith.

Dela Cruz was the campaign adviser of former Senator Ferdinand "Bongbong" Marcos Jr., who raised the issue of script change in his election protest against Vice President Leni Robredo.

Marcos’ camp had wondered why his lead over Robredo in the unofficial count began to erode following the introduction of a new script in the transparency server.

Robredo eventually overtook Marcos in the tally.

A spokesperson for Marcos lauded the DOJ resolution, describing it as a victory for the Filipino people especially those whose votes were allegedly not counted on election day.

“This is a most welcome development because the unauthorized change they introduced in the script of the transparency server indeed undermined the credibility of the elections," said lawyer Vic Rodriguez in a statement. 

"It was only after the script was changed that the results for the vice presidential race began to change at a uniform rate of 40 to 1, which was statistically impossible. Everyone who was glued to their TV that fateful night could see this." — NB/RSJ, GMA News