Searches and Seizure: Does It Include Computer Generated Files?

Imagine that law enforcers take away the computer of the accused, made digital copy of its contents, and then give back the computer to the accused. They do not open the copy, but kept it in their custody in case a need arises in the future. Or the act of installing a surveillance tool on the target’s ISP to generate copies of the incoming and outgoing email messages of target which is a suspect of committing a criminal act. Does it violate the person’s right against privacy and unreasonable searches and seizure?

            To answer these questions needs further qualification. It is in the writer’s opinion thatif copying a computer file amounts to seizure, then it cannot retain or make a copy absent of any special circumstances provided by law. On the other hand, if copying is not a form or act of seizure, then the act of copying and retaining the files is valid without any restriction provided that consent of the owner is acquired.

            Art. 111, Section 2 of the 1987 Philippine Constitution provides that:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizure of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to 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 persons or things to be seized.

            The answer to the above-question has a vital importance in determining the legality that governs every investigation in digital evidence. It inverts the usual pattern of criminal investigation. When searching for traditional physical evidence, law enforcers first search for property and then seize it. Computer technologies often require investigators to obtain a copy first and then search later. Nearly every case begins with copying data that will later be searched, and the legal officer or investigators will often prefer to copy more than less of it as far as practicable.

            The constitutional guarantee is not the prohibition of all searches and seizure but only of unreasonable searches and seizure. This provision is rooted on the American law in their Fourth Amendment. In one case ruled by the Supreme Court of the Philippines, it ruled that: “a search by a government employer of an employee’s office is justified at inception when there is reasonable ground for suspecting that it will turn up evidence that the employee is guilty of work-related conduct”. Also, in another case ruled by the U.S. Supreme Court, where the basis of the provision of the Philippine Constitution emanated, it held that where a government agency’s computer used policy prohibited electronic messages with pornographic content and in addition expressly provided that employees do not have any personal privacy rights regarding the use of their agency information system and technology, the government employee had no legitimate expectation of privacy as to the use and contents of his office computer, and therefore evidence found during warrantless search of the computer was admissible in prosecution of child pornography.

            It is the writer’s belief that search on computers is justified where there is a reasonable ground of suspecting that the filed stored therein would yield incriminating evidence to the pending investigation, provided, that all the necessary ruled on due process are complied with. Further, the wordings of Art. III Section 2 of the 1987 Philippine Constitution provides of whatever nature and for any purpose. It is the writer’s opinion that the then Philippine Legislature intends to have this provision broad enough without any limitation in order to  adjust to the changing needs of the state which includes technology. As a basic rule on statutory construction, when the law does not distinguish, we should not distinguish. 

Tech and the law

Right To Privacy: Does It Include Adverse Decisions Of The Supreme Court Available To Websites?

            Art III Section 3(1) provides that:

                       

The privacy of communication and correspondence shall be inviolableexcept upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

This has been a constitutional grant provided in the 1987 Philippine Constitution. It is a right given to its citizen as a mandatory duty to be respected. Such right covers letters, massages, telephone call, telegram and the like. However, valid exception was also laid down by the same constitutional provisionto allow the intrusion into the privacy of communication and correspondence of individuals such as: (a) upon lawful order of the court, or (b) when public safety or order requires otherwise as prescribed by law.

As time goes by modern technologies are invented that, which the writer believed,provides convenience and accessibility to most, if not all, people. As we noticed, through the invention of internets, the exchange of messages worldwide has been become easier, access to all information became possible and progress is within reach to every nation. All these things are, in reality, in existence.

It is at this point where an important question may be raise in connection with the above-stated statute. The right to privacy of communication and correspondence has been widely accepted in all state worldwide. It emanated from customs and traditions and now embodied in almost all statutes of all states.

Our court is not exempted in modernization. While its decisions are made in writing through the Supreme Court Reports Annotated (SCRA), they went further, in order to make is more accessible, by posting such decision in the World Wide Web. Notable websites are the supremecourt.gov, chanrobles,com and the like. Some curious minds are questioning if such acts may be a violation of the constitutional right of a person embodied in Art Iii Sec. 3(1) of the 1987 Philippine Constitution? Does a person have the right to demand for its removal should the decision is adverse to a person, thus prejudicial to his honor? Can a party-litigant may compel the court protect its name by virtue of his privacy?

To answer these questions, it is the writer’s opinion that another provision of the 1987 Phil. Constitution must be considered. Art III Sec 7 of the Constitution provides that:

The 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 researched data as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

            These rights to information are political rights available to citizens only. It includes the right to information on matters of public concern and right to access official records and documents. “Public concern,”like ”public interest,” eludes exact definition. They embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen.

            This right to information may sometimes tend to be in conflict with the right to privacy. There is no doubt that right to privacy is also a constitutionally protected right. It is recognized by the statute independently of its identification with liberty and deserves constitutional protection. There is a basic distinction between absolute and limited government. The concept of limited government has always included the idea that governmental powers stop short of certain intrusion into the personal life of the citizens. Protection of the private sector has become increasingly important as modern society has developed. 

            In the case of Valmonte vs. Belmonte (G.R. No. 74930 – February 13, 1989), the Supreme Court held that the right to information is an essential premise of a meaningful right to speech and expression. But this is not to say that the right to information is merely an adjunct of and therefore restricted in application by the exercise of freedom of speech and press. It goes hand-and-hand with the constitutional policies of full public disclosure and honesty in the public service.

            In another case ruled by the Supreme Court, Baldoza vs. Dimano (May 5, 1976), it was ruled that the incorporation of the right to information embodied in the Constitution is recognition of the fundamental role of free exchange of information in a democracy. There can be no realistic perception by the public of the nation’s problem or a meaningful democratic decision-making process if they are denied access to information of general interest. Information is needed to enable the members of the society to cope with the exigencies of times.

            It is the writer’s opinion that there is no doubt of the conflict between this two constitutionally granted right to individuals. The writer believed that in case of conflicting interest, it should rule is favor of the interest of the public. Decisions and opinions of the court are, of course, matters of public interest. In fine, the access to court records must be permitted subject to the court’s discretion such as the supervisory and protective powers of the court after considering the actual purpose for which the request for access is based. In line with this, the right to privacy is not without exception such as for public safety or order. The people has the right to know the ruling of the Supreme Court as it constitutes stare decisisin order for the people to know how the law should be interpreted and applied. It is an elementary rule that while judicial decisions are not laws, they form part of our legal system, hence, are evidence of what the law means. Without such information, another law will have a limited application which is the Art. 3 of the New Civil Code which provides that: ”Ignorance of the law excuses no one from compliance therewith.”