The issue of laptop searches based on a valid search and seizure

Because of the pervasiveness of electronic storage devices, there is an ongoing controversy in the US regarding the inspection of electronic devices, particularly of those carried by travelers entering the US. The validity of this action has been argued on the basis of the “border search exception” which allows US government officials to search electronic devices at the border without a warrant and/or probable cause. The rationale behind this is the importance of upholding governmental interest in protecting its sovereign borders over and above the interest of the individual. In fact, in the US, there are circumstances of laptop searches which have been held by US courts as valid, pursuant to said border search exception.

I am not aware of any circumstance of laptop searches (specifically the inspection of the contents thereof) in the Philippines. But if this situation occurred in the Philippines, assuming pursuant to a valid search and seizure, it is compelling to know and be aware if it permissible and if there is a sufficient justification for its validity. Supposing there is a valid search and seizure, can a person be compelled to unlock his computer and go through the contents thereof?

The right of a person against unreasonable searches and seizure is recognized and protected by our Constitution, particularly, Sections 2 and 3 (2) of Article III. The requirements of a valid search and seizure are provided under Section 2 of the Constitution and are further reinforced and clarified by our jurisprudence. Under the Constitution, the people are guaranteed the right to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.[1] The constitution mandates that these must be carried out only on the strength of a judicial warrant, otherwise evidence secured therefrom is deemed tainted and thus, inadmissible in evidence for any purpose in any proceeding.[2] Nonetheless, there are well-recognized instances where searches and seizures are allowed even without a valid warrant.

However, even if there is a valid search and seizure, a person may not be compelled to unlock his laptop and go through the contents thereof on the basis of his right against self incrimination. This constitutional right proscribes the use of physical or moral compulsion to extort communications from the accused. Purely mechanical acts are not included in the prohibition since the accused does not thereby speak his guilt.

In the case of Beltran vs. Samson[3], the Supreme Court ruled that the right against self incrimination likewise protects an accused who is compelled to furnish a specimen of his handwriting relative to his prosecution for falsification. The Supreme Court further ruled in this case that “writing is something more than moving the body, or the hand, or the fingers; writing is not a purely mechanical and attention; and in the case at bar writing means that the petitioner herein is to furnish a means to determine or not he is the falsifier xxx” Applying this to the issue, this situation may be tantamount to a person being compelled to unlock his laptop, which is not a purely mechanical act. The individual under compulsion, by unlocking his laptop and going through the contents thereof, is giving a means for the authorities to gather evidence to implicate him.

Based on jurisprudence, the following circumstances are held to be not in violation of the right against self-incrimination: (1) a woman charged with adultery may be compelled to submit to physical examination to determine her pregnancy;[4] (2) an accused may be compelled to submit to physical examination and to have a substance taken from his body for medical determination as to whether he was suffering from gonorrhea which was contracted by his victim[5]; (3) to expel morphine from the mouth of the accused[6]; and (4) to have the outline of his foot traced to determine its identity with bloody footprints[7]. Likewise, finger printing, photographing, paraffin testing and DNA testing is not also considered as a violation of the right. In view of the foregoing, it may be argued that compelling a person to unlock his laptop may not fall within the ambit of the above circumstances as these circumstances are considered body in evidence. Compared to an individual who has been compelled to unlock his laptop, these circumstances are purely mechanical acts which do not make the accused speak of his guilt.

The essence of the right against self-incrimination is testimonial compulsion, that is, the giving of evidence against himself through a testimonial act. Taking the case of US vs. Arnold[8], the defendant herein sought the protection of the Fourth Amendment, following the search and seizure of his laptop by the U.S. Customs and Border Patrol Officer upon his return to the US. He argued based on the analogy that a laptop is similar to a home because of its capacity allows for the storage of personal documents in an amount equivalent to that stored in one’s home. He further argued that a laptop is like the “human mind” because of its ability to record ideas, e-mail, internet chats and web-surfing habits. This case may have a logical argument of comparing a laptop to a human mind considering its storage capability. In fact, it may store far more personal information than a human mind can keep and remember. Thus, on this basis, it may be considered that a person compelled to unlock his laptop is effectively giving a testimonial act on the potential incriminating files that may be retrieved from his laptop.  

Note that the reason for the privilege is to avoid and prohibit positively the repetition and recurrence of the certainly inhuman procedure of compelling a person, in a criminal or any other case, to furnish the missing evidence necessary for his conviction, as ruled in the case of Bermudez vs. Castillo.[9] Thus, as stated in the same case, in order that the right may prove to be a real protection and not a dead letter, it must be given a liberal and broad interpretation favorable to the person invoking it.                                                                       

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[1] People of the Phil. vs. Evangeline S. Siton, et al., G.R. No. 169364, September 18, 2009

[2] Gregorio Amante, et al. vs. Bibiano Serwelas, G.R. No. 143572, September 30, 2005

[3] G.R. No. 32025, September 23, 1929

[4] Villaflor vs. Summers, 41 Phil. 62

[5] U.S. vs. Tan Teng, 23 Phil. 145

[6] U.S. vs. Ong Siu Hong, 36 Phil. 735

[7] U.S. vs. Salas, 25 Phil. 337

[8] 523 F.3d 941

[9] 64 Phil. 483

Right to Privacy vis-a-vis Supreme Court Decisions Posted in the Internet

The right to privacy is basically the right to be left alone. It is one of the rights which every human possesses in his natural state. It is based on a person’s inherent right to secure enjoyment of his private life. As to information, it usually covers the right of an individual to control information about himself, which includes the control over the processing, acquisition, disclosure and use of personal information[1]. It is the claim of individuals, groups or institutions to determine for themselves when, how and to what extent information about them is communicated to others[2].

The growth of technology has changed the way privacy is protected and violated because of the emergence of new technologies which created new ways to gather and share information. Indeed, the advancement of technology provided more convenient and faster ways of gathering information. The internet, in particular, paved way to immediate access to and research of information whether involving a particular person or a specific subject matter.

Easy access to information brought about by advancement in technology, is demonstrated, among others, by the emergence of websites which provided online repositories of statutes, implementing rules and regulations, administrative issuances as well as court decisions. In the Philippines, apart from the website of the government, its branches and its agencies, there are other independent websites which provide online repositories of laws and/or jurisprudence such as, Chan Robles, LawPhil, etc. In this case, one of the privacy issues that may arise is when a Supreme Court decision becomes available in these online repositories. The question is—Can the losing party in the case request to remove his name from the said decision (or remove the decision itself) on the basis of his right to privacy considering that the decision is prejudicial to his reputation?

My answer is in the negative.

In the Philippines, the right to privacy is principally bestowed under our Constitution and Civil Code. Article III of the Constitution, our Bill of Rights, provides at least two guarantees of right to privacy. “Section 2 guarantees "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose."Section 3 renders inviolable the "privacy of communication and correspondence.[3]" On the other hand, Article 26 of the New Civil Code provides that every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. These provisions, however, do not expressly cover a request of a losing party to remove his name or the case itself if the published Supreme Court decision was prejudicial to his reputation.

In the case of Ayer Productions vs. Capulong[4] the Supreme Court ruled that, “[t]he right of privacy or "the right to be let alone," like the right of free expression, is not an absolute right. xxx [T]he right of privacy cannot be invoked to resist publication and dissemination of matters of public interest.” In relation to this, the following provisions of the Constitution and Civil Code may be relevant:

- Section 7, Article III of the Constitution which guarantees “[t]he right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.”

- Article 8 of the New Civil Code which provides that that judicial decisions (i.e., decisions of the Supreme Court) forms part of the legal system of the Philippines.

Thus, based on the above, it can be considered that judicial decisions are vested with public interest. Accordingly, this limits the defense of right to privacy on the part of the losing party for the removal of his name or the case itself.

  

In the same case, the court stated that “[t]he interest sought to be protected by the right of privacy is the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate public concern.[5]” Thus, since the decision of the Supreme Court may not be considered as an unwarranted publicity or wrongful publication, the right to privacy may not provide a justification for said request of the losing party.

“In evaluating a claim for violation of the right to privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion.[6]” Applying this and considering a final judgment for the violation or wrongful act done by the losing party, he may not claim that he exhibited a reasonable expectation of privacy. Also, it may not be argued that publication of a Supreme Court decision mentioning the losing party’s name as an unreasonable government intrusion.

Taking into account other existing laws on privacy, particularly on laws which protect women and children, it is more common that the offended party or the victim is the one who is accorded protection against right to privacy and thus, the name of the offended party or the victim may be withheld from the public. This is true in violations of Republic Act 9262 or the Anti-Violence Against Women and Their Children Act of 2004, Rule on Violence Against Women and their Children, and Republic Act 7610 or the Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act, and its implementing rules.

Nonetheless, the Republic Act 8505 or the Rape Victim Assistance Protection Act of 1998 recognizes the right to privacy not only of the offended party but also the accused. The Act provides that “xxx the name and personal circumstances of the offended party and/or the accused, or any other information to establish their identities, and such other circumstances or information on the complaint shall not be disclosed to the public.” Thus, in this case, accused as the losing party may have a basis to request that his name may be removed from the Court’s decision but not the decision itself.

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[1] The Common Right to Privacy, speech delivered by Chief Justice Reynato S. Puno before the Forum on The Writ of Habeas Data and Human Rights

[2] Alan Westin, Privacy and Freedom, Atheneum New York 1967 p7

[3] In The Matter Of The Petition For Issuance Of Writ Of Habeas Corpus Of Camilo L. Sabio, G.R. No. 174340. October 17, 2006

[4] G.R. No. 82380 April 29, 1988

[5] Ibid.

[6] Ibid. 3

The Online Version Of The Official Gazette

The publication requirement of a law vis-à-vis its effectivity is provided under Article 2 of the New Civil Code which provides that “Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette, or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.” 

In the past, the publication of laws must be effected in the Official Gazette and not in any other medium.  

As a brief history, the Official Gazette was created on June 14, 1941 under Commonwealth Act No. 638, "An Act to Provide for the Uniform Publication and Distribution of the Official Gazette." Section 1 of said Act provides that there shall be published in the Official Gazette (1) all important legislative acts and resolutions of a public nature of the Congress of the Philippines; (2)all executive and administrative orders and proclamations, except such as have no general applicability; (3) decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published;(4) such documents or classes of documents as may be required so to be published by law; and (5) such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published: Provided, That for the purpose of this section every order or document which shall prescribe a penalty shall be deemed to have general applicability and legal effect: And provided, further, That the term “document” as used in this section shall include any order, regulation, rule, certificate, license, notice, or similar instrument issued, prescribed, or promulgated by any executive department, bureau, office, commission, independent board, agency, or instrumentality of the administrative branch of the Government, but not the legislative or judicial branch of the Government.

However, on July 18, 197, President Corazon C. Aquino issued Executive Order No. 200 of 1987, which amended Article 2 of the Civil Code. Pursuant to this amendatory law, publication may now either be in the Official Gazette or in a newspaper of general circulation in the Philippines.

Notwithstanding that publication may now be made in the in the Official Gazette or in a newspaper of general circulation in the Philippines, a question arises when publication is to be made in the Official Gazette. As you are aware, on July 26, 2010, the Office of the President launched the online version of the Official Gazette of the Republic of the Philippines. Thus, it is interesting to analyze whether the posting of laws via the online version of the Official Gazette would be considered as sufficient for purposes of complying with the publication requirement of Article 2 of the New Civil Code.

Applying the provisions of Electronic Commerce (E-Commerce) Act of 2000[1], it may be considered that online publication of laws would be sufficient for purposes of complying with the publication requirement of Article 2 of the New Civil Code. This may be established based on the objective of the E-Commerce Act which aims to facilitate domestic and international dealings, transactions, arrangements, agreements, contracts and exchanges and storage of information through the utilization of electronic, optical and similar medium, mode, instrumentality and technology to recognize the authenticity and reliability of electronic data messages or electronic documents related to such activities and to promote the universal use of electronic transactions in the government and by the general public.

This contention may be further supported on the basis of the sphere of application of the Act which applies to any kind of electronic data message and electronic document used in the context of commercial and non-commercial activities to include domestic and international dealings, transactions, arrangements, agreements, contracts and exchanges and storage of information.

A law, as posted via the online version of the Official Gazette, may be deemed as an electronic data message or electronic document which falls within the sphere of application of the E-Commerce Act. As provided under the Act, an electronic data message refers to information generated, sent, received or stored by electronic, optical or similar means[2]. On the other hand, an electronic document refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. [3]

It is worth noting though that the ruling of the Court in Garcillano vs. The House of Representatives[4] can be deemed to have disproved the above proposition on said online publication based on the E-Commerce Act. In this case, the court ruled that the E- commerce Act “xxx considers an electronic data message or an electronic document as the functional equivalent of a written document only for evidentiary purposes. In other words, the law merely recognizes the admissibility in evidence (for their being the original) of electronic data messages and/or electronic documents. It does not make the internet a medium for publishing laws, rules and regulations.” Thus, on the basis of this decision, it may be inferred that the publication thru the online version of the Official Gazette has no basis vis-à-vis the E-Commerce Act and thus, may not comply with the publication requirement of Article 2 of the New Civil Code.

Actually, based on the news, Manolo Quezon III, a member of the President's communications team, said that the print version of the Official Gazette still takes precedence over its electronic counterpart. He explained that the online version doesn't supplant the paper version, which is what the law and jurisprudence required.[5]

Nonetheless, the following points may be taken into account:

·   In reference, at least, to the object and sphere of application of the Act, it appears that it does not limit its application solely for evidentiary purposes

· In said case, the respondents justify their non-observance of the publication by arguing that they are published in booklet form available to anyone for free, and accessible to the public at the Senate’s internet web page. It is important to highlight that publication here was made in the Senate’s internet webpage. As such, the case may be different as regards the publication using the online version of the Official Gazette for publication.

· Written publication can be a functional equivalent of publication via the online version of the Official Gazette pursuant to the legal recognition of the Act of electronic data messages and electronic documents.

· The clear object of Article 2, based on the ruling of the Court in the case of Tañada vs. Tuvera[6], is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. The notice and publication would serve as the basis for the application of the maxim "ignorantia legis non excusat”. The Court ruled that it would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one.

Further, as reiterated in the Court’s resolution of the case of Tañada vs. Tuvera[7], the need for publication before any law be made effective seeks to prevent abuses on the part if the lawmakers and, at the time, ensure to the people their constitutional right to due process and to information on matter of public concern. Accordingly, this may also be achieved thru publication via the online version of the Official Gazette.

· The publication via the online version of the Official Gazette is in consonance with the rapid developments in information technology and greater number and diversity of its users which in turn provides increased public awareness.  

“The State recognizes the vital role of information and communications technology (ICT) in nation-building; the need to create an information-friendly environment which supports and ensures the availability, diversity and affordability of ICT products and services xxx;  its obligation to facilitate the transfer and promotion of technology; xxx[8].” This declaration of policy acknowledges to the role of technology for the national benefit. Thus, the use of the online version of the Official Gazette falls within this realm.  Be it noted that the in the past, the Official Gazette was criticized because of its erratic releases and limited readership; and thus, publication in the 

newspapers of general circulation was allowed thereafter as the same could better facilitate communication of laws to people, easily available and have broader audience.

Yet, whether or not the publication via the online version of the Official Gazette is sufficient for purposes of Article 2 of the New Code and whether the same finds supportive basis under the E-Commerce Act remains to be an interesting and challenging matter to be resolved. It seems that technology and the law are not yet outfitted for each other, at least in this jurisdiction.

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[1]Republic Act (RA) No. 8792, “An Act Proving for the Recognition and Use of Electronic Commercial and Non-commercial Transactions, Penalties for Unlawful Use Thereof, and Other Purposes

[2] Section 5(c), RA 8792

[3] Section 5(f), RA 8792

[4] G.R. No. 170338, December 23, 2008

[5] http://www.gmanetwork.com/news/story/197115/scitech/official-gazette-of-the-republic-of-the-philippines-goes-online

[6] G.R. No. 63915.  April 24, 1985

[7] G.R. No. L-63915, December 29, 1986

[8] Section 2, RA 8792