Wednesday, March 14, 2012

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.                                                                       






[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
[9] 64 Phil. 483

Friday, March 2, 2012

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.




[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