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.”

The Philippine Laws: How Will It Take Effect?

The Philippine Laws: How Will It Take Effect?

The New Civil Code of the Philippines, or the R.A. 386, which took effect last August 30, 1950 provides for an express provision as to how the laws in the Philippines shall take effect. Art. 2 of the said law states that:

Art. 2. – Laws shall take effect after fifteen days following the

completion of their publication either in the Official Gazette,

or in any newspaper of general circulation in the Philippines,

unless it is otherwise provided. (As amended by E. O. 200)

Pursuant to this particular provision, it creates several interpretations as to the applicability of statutes promulgated by Congress. Some says that laws shall take effect on the 15^th or 16^th day depending on its language. If the law is silent, statutes shall take effect after 15 days following its publication because such compliance cannot be dispense with. All these are true as far as the general principle of the effectivity of the law is concern.

True enough that such publication cannot be dispense with due to its materiality. In the classic case of Tanada vs. Tuvera, the court ruled that Art. 2 of the Civil Code does not preclude the requirement of publication even if the law provides for the date of its effectivity since the clear object of the law is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim ”ignoratia legis non excusat” which stands for ignorance of the law excuses no one. Hence, the basic constitutional requirement of due process cannot be attained.

Over the years this issue on publication has been a constant source of debates not only to the law-making bodies but several people studying Philippine Law. With the promulgation of several laws and executive orders, interpretation with regard to the Art. 2 of the Civil Code of the Philippines had also changed. A perfect example of this is when Executive Order No. 200 was issued by the late president Corazon Aquino. The order was passed on June 18, 1987 amending Art. 2 of the Civil Code adding any newspaper of general circulation, aside from the Official Gazette, as to where statues may be publish.

With the existence of advance technology due to the call of the 21^st Century, several methods of publication is being practiced by the government. Local newspapers, mass media and the World Wide Web had also been tools to inform the public for the laws promulgated, issued and passed. The government went further in creating/using http://gov.ph to provide information to the public as to their movements. Laws are also being posted in this site with the aim of information dissemination to cope with the advancement of technology. An interesting question arised in using these forms of notice to the public. If all the laws promulgated are posted in http://gov.ph alone, would it suffice the material need of publication pursuant to Art. 2 of the Civil Code, as amended by E.O. 200?

To my mind, the answer is negative. It is an elementary principle in statutory construction that plain words require no explanation. When once the meaning is plain, the wisdom and policy of the law should not be scan. In the case of Espino vs. Cleofe 52 SCRA 92, the court ruled that statutes are to be interpreted in their ordinary commonly accepted usage. The language of the law is clear and unequivocal and it should be taken to mean exactly what it says. However, these principles are not without exemption. The same court, Supreme Court of the Philippines, provides that it is also a well-settled doctrine that the court is to avoid constructing a statute in such a manner as would give rise to a constitutional doubt as enunciated in the case of Abellana vs. Marave 57 SCRA 106. Also, the case of Paras vs. Comelec 164 SCRA 49 substantially provides that too literal reading of the law should be admonish as this is apt to constrict rather than fulfill its purpose and defeat the intention of its authors. The intention is usually found not in the letter that killeth but rather in the spirit that vivifieth.

The above-mentioned question, to my mind, finds no application of the exemption of the basic principle of statutory construction. While it is true that the general principle is not absolute, Art. 2 of the Civil Code is clear, plain and unambiguous as to its wordings that only in the Official Gazette or any newspaper of general circulation will a statute may be publish to attain its effectivity. When the law does not distinguish, we should not distinguish.

True enough that the same law provides for the phrase unless otherwise provided which should also be taken into account. This phrase may be open to another interpretation that Congress may pass a law providing for the manner and where such law should be publish. But the more proper interpretation with this, as most of the scholars believe, is that such phrase refers to the date of effectivity and has nothing to do with the publication itself as the legislature may enact laws effective immediately but without dispensing the materiality of publication

Unless and until such proviso, Art 2 of the Civil Code, has been again amended to include other forms of publication that would suffice the requirement, it is the writer’s belief that what the law provides for its manner should not be disturb as it may create not only confusion to the people who are bound to the laws but also the body who created it.