The Manila City Prosecutor’s Office has dismissed for lack of merit and insufficiency of evidence the criminal complaint filed against seven officers of the Commission on Elections and Smartmatic-Total Information Management Corp. by former Abakada party-list representative Jonathan dela Cruz for alleged violations of the Cybercrime Prevention Act of 2012 (Republic Act No. 10175) committed during in the May 2016 National and Local Elections.
In a 27-page resolution dated Sept. 28, 2016, Manila City Prosecutor Edward Togonan concluded that the preliminary investigation conducted from June 7 to Aug. 12, 2016 failed to show convincing proof that the Comelec and Smartmatic officers named in the complaint had violated the following provisions of RA 10175: first, Section 4(a)(1) purportedly by accessing computer system, without right; second, Section 4(a)(3), allegedly by intentionally altering computer data, without right; and third, Section 4(a)(4) allegedly by intentionally altering or recklessly hindering interfering with the functioning of a computer and computer network by inputting, deleting and altering computer data and program, without right or authority, when the special character “?” was changed to “ñ” in the script of the transparency server on Election Day.
The resolution stated that among the seven respondents (Messrs. Elie Moreno, Marlon Garcia, and Neil Baniqued of Smartmatic; and Messrs. Rouie Peñalba, Mauricio Herrera and Nelson Herrera and Ms. Frances Mae Gonzales of Comelec), only Garcia performed the action alleged in the complaint to have violated RA 10175. The other six respondents cannot be considered as Mr. Garcia’s co-conspirators as they were either IT personnel merely present when Mr. Garcia took the action resulting in the hashcode incident, or were located elsewhere and merely informed about the action taken by Garcia.
The resolution ruled that Garcia did not commit the following violations to RA 10175 when he changed the special character “?”to “ñ” in the script of the transparency server:
On illegal access. Garcia, as project manager of Smartmatic for the 2016 National and Local Elections, was given access to the Automation Election System by the Comelec. “It was not only Smartmatic’s right to access the AES, but also its duty to do so,” explained the resolution.
On data and system interference. Garcia has the right or authority to change the special character “?” to “ñ” because it was within his competency. “The complainant also failed to show convincing proof that only the Comelec en banc may give such authority,” said the resolution.
On the action being a criminal offense. The action was not a criminal offense because it did not show intent due to the absence of malice; and recklessness because Garcia studied the error and consulted other Smartmatic officials before making the script change.
The Manila City Prosecutor maintained that “there is total absence of evidence that the replacement of ‘?’ with ‘ñ’ affected the operation of the AES and the results of the elections at all.”