DOJ finds Smartmatic, COMELEC personnel criminally liable for script change in May 2016 elections

7 June 2017

Calls such act an offense against the confidentiality and integrity of computer data and systems

For breaching the system, the Department of Justice (DOJ) found several Smartmatic and Commission on Elections (COMELEC) personnel criminally liable for changing the script in the transparency server on the night of the May 9, 2016 elections.

In a 41-page Resolution, Department of Justice Undersecretary Deo L. Marco, signing for Justice Secretary Vitaliano Aguirre, found probable cause to charge Smartmatic personnel Marlon Garcia, Head of the Technical Support Team and his subordinates Neil Baniqued and Mauricio Herrera as well as Comelec Information Technology experts Rouie Peñalba, Nelson Herrera and Frances Mae Gonzales with violation of Sections 4(a)(1), (3) and (4) of R.A. 10175 or the Cybercrime Prevention Act.

Section 4 (a)(1) of R.A. 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 Complaint filed against Smartmatic Project Director Elie Moreno was dismissed for lack of evidence.

“Wherefore, premises considered, the Petition for Review is hereby partially granted and the Resolution dated September 28, 2016 of the City Prosecutor of Manila is Modified. 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.

Former Abakada Rep. Jonathan Dela Cruz filed the cyber crime Complaint in June last year. He accused the respondents of “intentionally altering the election data without any right or authority.”

Dela Cruz pointed out that shortly after the unauthorized alteration of the script of the transparency server, the lead of Vice Presidential candidate Ferdinand “Bongbong” R. Marcos Jr. over his closest rival 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 1 million votes was eventually overtaken.

The Manila Prosecutors Office (MPO), however, dismissed Dela Cruz’s Complaint, prompting him to elevate his case to the DOJ through a Petition for Review.

In reversing the MPO’s findings, the Justice department ruled that the respondents failed to secure the required authorization from the Comelec en banc before changing the script in the transparency server. This was not only against protocol but was patently illegal.

The Resolution further stated there was enough evidence to indict them for the unauthorized change in the system of the transparency server since Marlon 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 that Peñalba could not absolve himself of the crime charged because of his inconsistent statements : at first he admitted that he instructed Garcia to change the system and then he changed his tune and claimed that Smartmatic was authorized to access the system.

“x x x this Office cannot absolve him (Peñalba) for his inconsistent statements of having instructed Marlon Garcia to change the script because he (Peñalba) had no authority to do so, but belatedly acknowledged that Smartmatic personnel had authority to access the system. Rouie Peñalba, along with Frances Mae Gonzales and Nelson Herrera, as COMELEC representatives assigned to the PPCRV Center and holding ½ of the password to access the system, acquiesced to the access or interference effected by the Smartmatic personnel, beyond their authority,” the Resolution stated.

The DOJ also rejected the claim of Smartmatic that what was carried out was merely a "cosmetic change" that did not affect the elections. It explained that RA 10175 is a special law and as such, it did not require criminal intent. “x x x 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,” it said.

The Justice department also disputed Smartmatic’s defense that the Protocol of Escalation, which involved contingency matters for escalation in particular levels of severity, gave them the authority to decide by themselves the course of action to be taken in case of any glitches in the system.

The DOJ said 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.”

“Moreover, it was established that respondents [were] able to access the transparency server to change the same without notifying the Comelec en banc. 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 script of the transparency server. As a result thereof, the hash codes failed to match.”

The Justice department also took notice of the failure of Smartmatic and Comelec to report the script change immediately after it was carried. “However, despite the alteration, said fact was not announced until after the lapse of 24 hours when the parties were alerted of said fact,” it said.

Atty. Vic Rodriguez, spokesperson of former Senator Ferdinand “Bongbong” R. Marcos Jr. lauded the resolution of the DOJ.

“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. 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.

"This is a victory for the Filipino people - - especially those whose votes were not counted on election day,” Rodriguez said.