Zones of Privacy: How Private?

Author:Llanillo, Llewellyn L.

"All the forces of a technological age... operate to narrow the area of privacy and facilitate intrusions into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society." (1) LAW as a normative tool was invented to maintain order in society; laws, however, continually evolve to accommodate changing times and respond to society's needs. In the information age, ideas and news become accessible in an instant (2) Along with the ease of the flow of information, the system of connections and the collection of data have greatly improved, benefiting not only human relations, but the development of the economy as well.

Along with the upside, however, is the downside of these new technological advances--from the inconvenience caused by prank calls, to the more serious problems of harassment, scams, and acts of terror. Society must respond with measures deemed appropriate, reasonable, and efficacious, to keep abreast of technological progress.

This article discusses the constitutional and legal implications engendered by the collision between the right to individual privacy and the exercise of the state's police power pursuant to the demands of public interest and state security under Philippine law. We touch on the tension between privacy rights and public interest embedded in the various laws enacted to meet new threats, and elaborates on this tension as the courts balance competing interests in the following legislation: (a) Human Security Act of 2007, (3) (b) Anti-Money Laundering Act of 2001, (4) (c) Terrorism Financing Prevention and Suppression Act of 2012, (5) (d) Cybercrime Prevention Act of 2012, (6) (e) Data Privacy Act of 2012, (7) (f) the proposed national centralized identification system, and (g) the proposed registration of prepaid mobile phones.

  1. Right to Privacy Under Philippine Law: A Survey of Jurisprudence

    The right to privacy means the "right to be let alone" (8) and is the "beginning of all freedoms." (9) Discussing the origin of the right to privacy, Pavesich v. New England Life Insurance Co. held that the right to privacy has its foundation in natural law and the instinct of nature. (10) In Philippine law, the concept of privacy is enshrined in the Constitution and is regarded as the right to be free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to cause humiliation to a person's ordinary sensibilities. (11) It has been described as the most comprehensive of rights and the right most valued by civilized men. (12)

    1. Privacy--an Independent Right

      In Morfe v. Mutuc, the Philippine Supreme Court affirmed that the right to privacy exists independently of its identification with liberty, and in itself fully deserving of constitutional protection. (13) Disini v. Secretary of Justice, (14) citing Sabio v. Gordon, (15) also recognized the importance of the different zones of privacy protected under Philippine law. This right could also be derived from the Universal Declaration of Human Rights, which mandates that "no one shall be subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of the law against such interference or attacks." (16)

      The Philippine Constitution guarantees the right against unreasonable searches and seizure, as well as the right to privacy of communication and correspondence. (17) It expressly guarantees the right against self-incrimination, (18) liberty of abode, (19) right to due process, (20) and the right to and freedom of association. (21)

      1. Situational, Informational, and Decisional Privacy

        The concept of privacy has, through time, greatly evolved, with technological advancements playing an influential role. This evolution was briefly recounted in former Chief Justice Reynato S. Puno's speech, The Common Right to Privacy, where he explained the three strands of the right to privacy: (1) locational or situational privacy; (2) informational privacy; and (3) decisional privacy. (22)

        Applying the United States case of Whalen v. Roe, (23) the Philippine Supreme Court explained "decisional privacy" and "informational privacy." (24) "Decisional privacy" involves the right to independence in making important decisions, while "informational privacy" refers to the interest in avoiding disclosure of personal matters. "Informational privacy" has two aspects: the right not to have private information disclosed, and the right to live freely without surveillance and intrusion. (25) This is the right of an individual to control information about oneself, (26) and those who oppose government collection or recording of traffic data in real time seek to protect this aspect of the right to privacy. (27)

        On September 12, 2012, Republic Act (RA) No. 10175, otherwise known as the Cybercrime Prevention Act of 2012, was signed into law. A contentious provision was Section 12, on real-time collection of traffic data associated with specified communications transmitted by means of a computer system. Critics questioned whether this provision has a proper governmental purpose, since a law may require the disclosure of matters normally considered private only upon showing that such requirement has a rational relation to the purpose of the law, that there is a compelling State interest, and that the provision itself is narrowly drawn. (28)

        In discussing the collection of traffic data, the Philippine Supreme Court held that "when seemingly random bits of traffic data are gathered in bulk, pooled together, and analyzed," these would lead to the creation of "profiles of the persons under surveillance. With enough traffic data, analysts may be able to determine a person's close associations, religious views, political affiliations, even sexual preferences." (29) These clearly fall within matters protected by the right to privacy. (30) Because of a failure to provide safeguards sufficient to protect constitutional guarantees and the vague purpose offered in the provision for collection, the provision was declared unconstitutional. Chief Justice Ma. Lourdes Sereno in a separate opinion (31) clarified that real-time collection of traffic data is not invalid per se. However, there must be "robust safeguards" and an explanation for the need and nature of the traffic data for warrantless real-time collection.

      2. Privacy in the Workplace

        Two significant cases in Philippine jurisprudence on privacy in the workplace are the cases of Polio v. Constantino-David, (32) involving the search of a government employee's computer data files, and Social Justice Security (SJS) v. Dangerous Drugs Board, (33) dealing with the mandatory drug testing of, among others, officers and employees of public and private offices. (34) In Polio, the Philippine Supreme Court held that a search by a government employer of an employee's office is justified when there are reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-related misconduct (35) The concept of "workplace privacy policy," as discussed in the United States case of O'Connor v. Ortega (36) played a central role in the decision. In determining whether privacy rights would be violated, searches must pass the test of "reasonableness for warrantless searches in the workplace." (37) "Reasonableness" is the touchstone of the validity of a government search or intrusion. (38)

        Polio stressed the relevance of the surrounding circumstances: whether a particular act of the employer impinges on an employee's right to privacy; the employee's relationship to the item seized; whether the item was in the immediate control of the employee when it was seized; and whether the employee took actions to maintain his privacy in the item. (39) It is important to note that the Supreme Court added that reasonable expectation of privacy is negated by the presence of a policy that puts its employees on notice that they have no expectation of privacy in anything they create, store, send, or receive on office computers. (40) Based on the foregoing, privacy in an office is circumscribed by the company's work policies, the collective bargaining agreement, if any, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their expectation of privacy in a regulated office environment is reduced, and a degree of impingement upon such privacy has been upheld. (41)

        In SJS, the Philippine Supreme Court found the mandatory testing requirement for officers and employees of public and private offices (42) reasonable and valid. Reasonableness is the touchstone of the validity of a government search or intrusion. Whether a search at issue complies with the reasonableness standard is judged by the balancing of the government-mandated intrusion on the individual's privacy interest against the promotion of some compelling state interest (43) Authorities have agreed that the right to privacy yields to certain rights of the public and defers to police power. (44) Also, for a law touching on the privacy rights of employees to be valid, there must be well-defined limits to properly guide authorities. (45)

    2. The State's Police Power and Its Limits

      A counterweight to protected privacy is the state's police power: the power to restrain and regulate the use of liberty and property to promote the public welfare. This power outpaces easily the other two inherent powers of government, eminent domain and taxation, with respect to interfering with private rights. Police power regulates not only property but, more importantly, the liberty of virtually all individuals. In this sense, it is infinitely more important than eminent domain and taxation. (46)

      Because of its function, police power is described as the most pervasive, the least limitable, and the most demanding of the three inherent powers of the state. (47) Here, the individual is...

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