Insights: Privacy, Free will of the People

“Civilization is the process of setting man free from men” – Ayn Rand

"Privacy" is defined as the state of being private. Private derives from privatus, Latin for belonging to oneself, not public or pertaining to the state. It is the right to separate oneself from, or to unite with, others-the right to exclude or include-by one's own voluntary choice. [i]The Right of person to be left alone is traced way way back in history, it is considered as the most fundamental right of every person. It is the right to separate oneself from, or to unite with, others-the right to exclude or include-by one's own voluntary choice. All rights are moral principles that sanction the individual's ability to act upon private choices in a public or social context-free from violent interference.[ii]  In an article entitled “The Right of Privacy”[iii] done in Harvard Review it states that “in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, -- the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term "property" has grown to comprise every form of possession -- intangible, as well as tangible.” This specifically discusses the true meaning of true freedom and privacy. In the Philippines this means free from illegal and inhumane intrusion from the government, from every sector that will infringe the right of privacy. It is true that no man is an island, in one point of individual’s life he needs to be with someone and to blend with other to attain development. But this must not be reason to infringe one’s right to be left alone in his personal life or personal choice. Ours is a country of freedom, country of people’s will. Government is run by the people not the other way around. People have their own free will to make their own choices. But when such rights are "being evaded, denied, negated and violated by the dominant philosophical theories and political practices of our time," it is no wonder that so much confusion surrounds the concept of privacy. [iv]  

In the world of progress and advancement, technology plays a big role in the evolution of our society towards economic stability. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society, [v] these developments of the law was inevitable. [vi] Running a government is no easy task. Law enforcement, service delivery and social security benefits availment entail voluminous documents that have compelled states to devise tools that simplify and manage these tasks.[vii] These changes give reason for the government to act and create laws for the protection and development of our society, one example of this is the creation of the National Identification System. Mandatory nationwide identification systems have been implemented in a number of countries including Argentina, Belgium, Colombia, Germany, Italy, Peru and Spain. While these schemes vary by country, individuals are typically assigned an ID number, which is used for a broad range of identification purposes.[viii]  The concept of a national identification system was first instituted in countries with populations coming from diverse ethnic groups. The idea was to use the ID as a means of identifying people of a certain race, politics or religion.[ix] In the Philippines it is introduced to provide Filipino citizens and foreign residents with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities.[x] The creation of this law will help the government and also the citizen to transact business, this law requires a computerized system to properly and efficiently identify persons seeking basic services on social security and reduce, if not totally eradicate fraudulent transactions and misrepresentations.[xi] This will help our country to be globally competitive in other countries. In other countries, the adoption of an Identification System has provided a useful tool in minimizing, if not eradicating, bureaucratic red tape.[xii] Red tape is the delaying in the processing of documents and transactions which is very usual to our country. According to the framers of this administrative act, this will help our country in many aspects. But in exchange of this progress the right of people in their privacy must be surrendered in the government. Historically, national ID systems have been used to discriminate against people on the basis of race, ethnicity, religion and political views.[xiii] It is true that privacy may be voluntary sacrificed , normally in exchange for perceived benefits and very often with specific dangers and losses, although this is a very strategic view of human relations.[xiv] But this should not be used as a weapon against the people who are true owner of their freedom. The promulgation of the Identification System will ask the people to make some of their private information to put in public, like their address, name and other important information. In broad terms, a national identification (ID) system is a mechanism used by governments to assist public agencies in identifying and verifying the identities of citizens who are availing of government services or making public transactions.[xv] National identity systems present difficult choices about who can request to see an ID card and for what purpose. Mandatory IDs significantly expand police powers. Police with the authority to demand ID is invariably granted the power to detain people who cannot produce one. Many countries lack legal safeguards to prevent abuse of this power.[xvi] It requires systematic invasions of people's privacy-through regulations and prohibitions of their associations, or by outright surveillance of their peaceful activities.[xvii]

Civil libertarians and human rights activists reject the idea of a national ID card based on three reasons: “functionality creep,” the potential for misuse due to identity fraud, and the privacy issue. [xviii]According to human rights activists, an ID system can be a double-edged sword because it can suffer from “functionality creep” which means it can serve purposes other than its original intent. Thus, even if the original rationale for an ID system is simply to cut government red tape, a government may eventually use it as a mechanism for repression against political opponents or to discriminate on the basis of race or ethnicity.[xix] Mandatory national ID cards violate essential civil liberties. They increase the power of authorities to reduce your freedoms to those granted by the card.[xx]

In line with these threats some people ask for the nullification of the said administrative order. In the particular case of Ople vs Torres [xxi] they specifically discussed the harm that will be done if this national id system will be implemented. In this case they said the threat comes from the executive branch of government which by issuing Administrative Order. No. 308 pressures the people to surrender their privacy by giving information about themselves on the pretext that it will facilitate delivery of basic services. Given the record-keeping power of the computer, only the indifferent fail to perceive the danger that Administrative Order No. 308 gives the government the power to compile a devastating dossier against unsuspecting citizens. [xxii] It is further discussed that  Administrative Order. No. 308 falls short of assuring that personal information which will be gathered about our people will only be processed for unequivocally specified purposes.  The lack of proper safeguards in this regard of  Administrative Order No. 308 may interfere with the individual's liberty of abode and travel by enabling authorities to track down his movement; it may also enable unscrupulous persons to access confidential information and circumvent the right against self-incrimination; it may pave the way for "fishing expeditions" by government authorities and evade the right against unreasonable searches and seizures.  [xxiii]

In order to answer controversies surrounding the said Administrative order the government seek another  remedy to answer these shortcomings, this lead them to create a new law, the  Republic act no. 10173 also known as the “ Data Privacy Act of 20112”.  This law is passed to make sure the protection of the personal information of the people. This will help to answer all the gray areas and weakness of the National Identification system.    This was approved by President Benigno Aquino Jr. last August 15, 2012. It is an act protecting individual personal information in Information and Communication System in the Government and Private Sector, creating for this purpose a National Privacy Commission and for other purposes. The National Privacy Commission will administer and implement the provisions of this Act and to monitor and ensure compliance of the country with International Standard sets for data protection and the scope of this law is applies to the processing of all types of personal information and to any natural or juridical person involved in personal information processing including those personal information controllers and processors who, although not found in the Philippines.[xxiv]  It merely requires that the law be narrowly focused and a compelling interest justifies such intrusions. Intrusions into the right must be accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions.

It is true that the government found a good way to answers all the questions and doubts circulating the implementation of the National Identification system by adopting the new law (RA 10173), however Ra 10173 will not provide sufficient mechanism to the introduction of National Identification System in the Philippines. There are also many vague and gray areas in this law that will not protect the right of the people in their privacy. Many of the sections of the law gives the reader more questions about the law itself, one clear example is section 3 (b) of the law, it talks about the “Consent of the data Subject”. It states that the consent must be freely given, it must be in writing and authorized, it may also be given in behalf of the data subject by an agent. The big question is what about forgery? How can they make sure that the written authorization is not forged? If this will happen, the consent is not freely given and against the will of the person. Also in the use of the National Identification System the government will use the advent of biometrics and microchips technology also has profound implications. Critics argue that the potential for abuse and invasion of privacy is even greater with the use of biometrics since it is vulnerable to identity fraud.[xxv] The citizen is no longer in control of his personal information. [xxvi] It is clear that mere consent will suffice to get information but what about if the information is transferred from one person to another, section 17 (Transmissibility of Rights of the data Subject) of the law answers the question of transferability, but how can they prove the authenticity of the consent of the transferred information? How they can disapprove the use of the information if the information is already transferred and out of their hands? These questions alone are clear violation of the right of privacy. The transfer of personal information without consent is a clear infringement of their right to be left alone. Another big question about the process of the personal information that was discussed in section 8 of the same law, it says that it shall be allowed subject to compliance and it must be collected for specific purpose. Who will decide if the purpose is legitimate? How can they tell that this purpose is legitimate and not be used for some other illegitimate purpose? Section 13 talks about the Sensitive Personal Information and Privileged Information, again the question is how can they make sure that these information are secured and not to be used in wrong purpose? What is the scope of the word “specific purpose”?  To what extent this purpose will be used that will not be a violation of the right of the person in their privacy? How can the government make sure that the information in their hands are safe and be only used in legitimate purpose?

The advocates of the Data Privacy Act of 2012 said that the new law is expected to strengthen the country's booming Information Technology-Business Process Outsourcing (IT-BPO) industry, as it makes Philippine legislation in line with international data privacy standards. The measure will allow the industry to expand in other segments such as healthcare and HR outsourcing.[xxvii] From a technical perspective it will encourage companies in our sector to strengthen existing security protocols and further deter any attempts at data theft.  More likely, this is the best practice in the IT-BPO industry that will ensure that the Philippines remains competitive and in fact leads breakthrough initiatives for the industry. [xxviii] Section 4 of the said law  discusses that it applies to personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines. But what if the perpetrators are those not found in the Philippines neither uses equipment that are located in the country and do not maintain an office, branch or agency in the Philippines? Are they exempted even though they are processing personal information of a Filipino citizen? Section 6 (Extraterritorial Application) of the law answers this question, however it has also weakness or loophole. This particular section discusses that the law will only apply to entities that has link or, in any other way, has connection with our country, the Philippines. So, for example, when an entity that has no link in the Philippines processes personal information about a Filipino citizen they will not have recourse, another infringement of privacy.

           

Data Privacy Act provides penalties to its perpetuators or violators. Chapter 8 of the law provides for the penalties for the Unauthorized Processing of Personal Information and Sensitive Personal Information (Section 25), Accessing Personal Information and Sensitive Personal Information Due to Negligence (Section 26), Improper Disposal of Personal Information and Sensitive Personal information (Section 27) and other violations of the law. Violators and perpetuators are penalized by imprisonment and fines, hence, it makes the law a special penal law. If a person’s right to privacy was violated by virtue of this law and all the necessary pieces of evidence are electronic evidence, then how can that person support his allegation? The Rules on Electronic Evidence specifically states in its section 2 that it shall only apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases. The victims have no other recourse because they do not have enough evidence to support their allegations. How they can protect their right if doesn’t have any evidence that will support their allegations?

            From the preceding paragraphs, it discusses the loopholes or the weakness and vagueness of the said law. In simplest term the implementation of the new law will not be sufficient enough to protect the fundamental right of privacy of the people. The introduction of National Identification System will be a violation of the right  of the people to be left alone.  The Constitution specifically protects the people from all possible intrusion to its private life. As a counterweight to the great powers of the government, the Bill of Rights would pose a constant standard of measurement to determine the validity of any government act which may limit rights and liberties, or intrude into privacies of persons, or otherwise impair their freedom. [xxix] As the Supreme Court rule in the Case of Ople vs Torres[xxx]. “The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector — protection, in other words, of the dignity and integrity of the individual — has become increasingly important as modern society has developed. All the forces of a technological age — industrialization, urbanization, and organization — operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society.”  There are many other ways to be globally competitive and attain development without putting the right of the people in stake. The government must be the one who protect its citizen from any harm, not the government itself that will take away this freedom from its citizens.

            Philippines is a progressing country, it is in the stage that many opportunities lies ahead for its development. The main weapon of our country to be globally competitive is the people itself, the Filipino Citizen. Like Ayn Rand said, Civilization is the progress toward a society of privacy. The savage's whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men[xxxi], towards development, men must be free to make its own will, to make decisions in itself, their right to think on their own. . It was a requirement of human cognition and civilization. [xxxii] Government must see that taking the freedom from the people to attain development is not the right way, it will only create more problems that answers.

The world may change and technological and scientific advances may alter the way the government observes and monitors its citizens and other persons, the manner it interacts with them, or simply the modes and forms by which it conducts its business[xxxiii]. New threats to society may be posed by modern means of communications and transportation and other gizmos, all of which may necessitate corresponding changes and updates in the government arsenal needed to safeguard society and to maintain order[xxxiv] but this must not be a reason to take away such liberty from its citizens, the liberty to be left alone and the freedom from unwarranted governmental intrusions into private enclaves [xxxv]

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[i] Sciabarra, Chris. (n.d). Citing Websites. In Privacy and Civilization. Retrived May 4, 2013, from http://www.freeradical.co.nz/content/58/Privacy.php

[ii] ibid

[iii] Warren and Brandeis, December 15, 1890, Citing Websites. In The Right To Privacy. Retrived May 4, 2013, from  http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html

[iv] Sciabarra, Chris. (n.d). Citing Websites. In Privacy and Civilization. Retrived May 4, 2013, from http://www.freeradical.co.nz/content/58/Privacy.php

[v] Warren and Brandeis, December 15, 1890, Citing Websites. In The Right To Privacy. Retrived May 4, 2013, from  http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html

[vi] ibid

[vii]Senate Economic Planning Office, December 2005, Citing Websites. In Policy Insights: National Identification System: Do we need one? Retrieved May 4,2013 from http://www.senate.gov.ph/publications/PI%202005-12%20-%20National%20Identification%20System%20-%20Do%20We%20Need%20One.pdf

[viii] Electronic Frontier Foundation, (n.d). Citing Websites. In Mandatory National IDs and Biometric Databases. Retrived may 4,2013, from  https://www.eff.org/issues/national-ids

[ix] Senate Economic Planning Office, December 2005, Citing Websites. In Policy Insights: National Identification System: Do we need one? Retrieved May 4,2013 from http://www.senate.gov.ph/publications/PI%202005-12%20-%20National%20Identification%20System%20-%20Do%20We%20Need%20One.pdf

[x]Citing website. In Chan Robles Virtual library. Retrieved May 4,2013  from http://www.chanrobles.com/administrativeorders/administrativeorderno308.html

[xi] Ibid

[xii] Senate Economic Planning Office, December 2005, Citing Websites. In Policy Insights: National Identification System: Do we need one? Retrieved May 4,2013 from http://www.senate.gov.ph/publications/PI%202005-12%20-%20National%20Identification%20System%20-%20Do%20We%20Need%20One.pdf

[xiii] Electronic Frontier Foundation, (n.d). Citing Websites. In Mandatory National IDs and Biometric Databases. Retrived may 4,2013, from  https://www.eff.org/issues/national-ids

[xiv] Citing Website. In Wikipedia: Privacy. Retrieved May 4,2013 from http://en.wikipedia.org/wiki/Privacy

[xv] Senate Economic Planning Office, December 2005, Citing Websites. In Policy Insights: National Identification System: Do we need one? Retrieved May 4,2013 from http://www.senate.gov.ph/publications/PI%202005-12%20-%20National%20Identification%20System%20-%20Do%20We%20Need%20One.pdf

[xvi]Electronic Frontier Foundation, (n.d). Citing Websites. In Mandatory National IDs and Biometric Databases. Retrived may 4,2013, from  https://www.eff.org/issues/national-ids

[xvii] Sciabarra, Chris. (n.d). Citing Websites. In Privacy and Civilization. Retrived May 4, 2013, from http://www.freeradical.co.nz/content/58/Privacy.php

[xviii] Senate Economic Planning Office, December 2005, Citing Websites. In Policy Insights: National Identification System: Do we need one? Retrieved May 4,2013 from http://www.senate.gov.ph/publications/PI%202005-12%20-%20National%20Identification%20System%20-%20Do%20We%20Need%20One.pdf

[xix] Ibid

[xx] Electronic Frontier Foundation, (n.d). Citing Websites. In Mandatory National IDs and Biometric Databases. Retrived may 4,2013, from  https://www.eff.org/issues/national-ids

[xxi] Citing Websites. In The Lawphil Project. Retrived May 4,2013 from http://www.lawphil.net/judjuris/juri1998/jul1998/gr_127685_1998.html

[xxii] Ibid

[xxiii] ibid

[xxiv] GbSb, (n.d), Citing Websites. In What is RA 10173 or Data Privacy Act of 2012 - Scope and Penalties,  Retrived May 4, 2013 from http://gb-sb.blogspot.com/2012/08/what-is-ra-10173-or-data-privacy-act-of.html

[xxv] Senate Economic Planning Office, December 2005, Citing Websites. In Policy Insights: National Identification System: Do we need one? Retrieved May 4,2013 from http://www.senate.gov.ph/publications/PI%202005-12%20-%20National%20Identification%20System%20-%20Do%20We%20Need%20One.pdf

[xxvi]  Ibid

[xxvii] Leal, Michelle Reijinia. December 7, 2012. Citing Websites. In Personal : RA 10173 Data Privacy Act. Retrieved May 4, 2013 from http://michelleleal10.blogspot.com/2012/12/ra-10173-data-privacy-act.html

[xxviii] Ibid

[xxix] Gorospe, Rene, (2006) Constitutional Law Notes and readinds on the Bill of Rights, Citizenship and suffrage, Volume 1,  page 62

[xxx]  Citing Websites. In The Lawphil Project. Retrived May 4,2013 from http://www.lawphil.net/judjuris/juri1998/jul1998/gr_127685_1998.html

[xxxi] Sciabarra, Chris. (n.d). Citing Websites. In Privacy and Civilization. Retrived May 4, 2013, from http://www.freeradical.co.nz/content/58/Privacy.php

[xxxii] Ibid

[xxxiii] Gorospe, Rene, (2006) Constitutional Law Notes and readinds on the Bill of Rights, Citizenship and suffrage, Volume 1,  page 650

[xxxiv] ibid

[xxxv] ibid

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