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.
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