03 Jun 2010

The Common Right to Privacy
*byChief Justice Reynato S. Puno
Supreme Court

The King was powerful; he was clothed with majesty; his will was the law, but, with few exceptions, the humblest citizen orsubject might shut the door of his humble cottage in the face ofthe monarch and defend his intrusion into that privacy whichwas regarded as sacred as any of the kingly prerogatives….2

Hence, civilization evolved but always there was the effort to find thedelicate balance between the public sphere, on the one hand, where theindividual is in communal activity, and the private sphere on the other,where the individual may pursue his path to individuation.


At this juncture, let us take a sideglance at the United States where the“right to privacy” has had more time to evolve. Though the right to privacyis not a right found in the text of the United States Constitution, it has beenrecognized as an inherent limitation in the government’s ability to regulatethe conduct of its citizens. As held by the US Supreme Court in the 1965case of Griswold v. Connecticut, “[the] right to privacy [is] older than theBill of Rights -- older than our political parties.”3 The Court then held thatthe right to privacy was a fundamental right under the Constitution and it



came from penumbras of the Bill of Rights through the First, Fourth, Fifthand Ninth Amendments.4According to current US jurisprudence, the constitutional right toprivacy has three strands:
Locational or situational privacy is the easiest and leastcontroversial of the three. Locational privacy refers to the privacy that is feltin a physical space, such as that which may be violated by trespass andunwarranted search and seizure.Informational privacy is usually defined as the right of individuals tocontrol information about themselves.5 This includes the control over theprocessing, acquisition, disclosure and use of personal information.6Informational privacy draws primarily upon the tort law of privacy.Decisional privacy is usually defined as the right of individuals tomake certain kinds of fundamental choices with respect to their personal andreproductive autonomy. Among the three strands of privacy, decisionalprivacy, or the “constitutional protection [for] personal decisions relating tomarriage, procreation, contraception, family relationships, child rearing, andeducation,” has been the most controversial. Within this strand, the Court



has found constitutional rights of minors to obtain contraception withoutparental consent,7 of adults to possess obscene materials,8 of women toobtain abortions,9 and of all individuals to engage in acts historicallycharacterized as “deviate sexual intercourse.”10Let me now advert briefly to ---


Privacy in the ConstitutionThe right is entrenched in Article III of the 1987 Constitution of thePhilippines contains the Bill of Rights. Section 2 provides that “the right ofthe people to be secure in their persons, houses, papers, and effectsagainst unreasonable searches and seizures of whatever nature and forany purpose shall be inviolable xxx.”It is also embedded in Section 3(1) which states that the “privacy ofcommunication and correspondence shall be inviolable except upon lawfulorder of the court, or when public safety or order requires otherwise, asprescribed by law.”11B. Privacy in the LawsAside from the Constitution, our laws protect privacy. The CivilCode of the Philippines states that “[e]very person shall respect the




dignity, personality, privacy, and peace of mind of his neighbors andother persons.”12Also, Article 32(11) of the Civil Code states that “any public officeror employee, or any private individual, who directly or indirectly obstructs,defeats, violates or in any manner impedes or impairs x x x the privacy ofcommunication and correspondence x x x shall be liable to the latter fordamages.”The Anti-Wiretapping Act13 guarantees a reasonable expectation ofprivacy in one’s conversations over electronic means.Bank records are protected by the Bank Secrecy Act14 and theSecrecy of Bank Deposits Act.15 The Act provides that deposits with banksor banking institutions are confidential and may not be examined, inquired,or looked into absent “exceptional circumstances.”C. Privacy in Judicial DecisionsSimilarly decisions of our Supreme Court recognize the right toprivacy. In Morfe v. Mutuc16 the Supreme Court had the occasion to ruleon the existence of the right to privacy, despite dismissing the action fordeclaratory judgment challenging the validity of the provisions of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019). Morfe



recognized the constitutional right to privacy as laid down in Griswold v.Connecticut.17 Let me now go to ---

IV. INTERNATIONAL DEVELOPMENTS

In other countries, privacy protection has become an impetus formodern laws that protect data and information. The United Kingdom haspromulgated their Data Protection Act of 1998 and Australia haspromulgated their Privacy Act of 1988. Today, all member countries of theEuropean Union are required to legislate to ensure that citizens have a rightto privacy, through the regional governing body’s.
The Philippines has an outdated law on data transfer, i.e., Presidential Decree No. 1718 entitled Providing For Incentives In The Pursuit of Economic Development Programs By Restricting The Use of Documents and Information Vital To The National Interest in Certain Proceedings and Processes.
Broadly, P.D. 1718 prohibits the export of all documents and information from the Philippines to other countries that may adversely affect the interests of Philippine corporations, individuals, or government agencies.P.D. 1718 contains exceptions for exportation of information that are a matter of form, in connection with business transactions or negotiations that require them, in compliance with international agreements, or made pursuant to authority granted by the designated representative of the President. This17 See Griswold, supra note 4.7law, however, cannot be implemented because of lack of rules and regulations in its enforcement.Finally, allow me now to discuss --


The writ of habeas data has a very short history.18 The directpredecessor of the writ of habeas data is the Council of Europe’s 108thConvention on Data Protection of 1981. A comparative law scholar hasdescribed habeas data as “a procedure designed to safeguard individualfreedom from abuse in the information age.”19The European Data Protection Convention of 1981 was convened todevelop safeguards to secure the privacy of the individual by way ofregulating the processing of personal information or data. Habeas data wasinitially developed in the early 1980 Europe, where countries like Germanyfounded its use upon the constitutional recognition of the right to individualself-determination. In Latin American countries, the action of habeas datawas used to investigate human rights violations committed during pastmilitary dictatorships in the Western Hemisphere. Family members ofdisappeared persons resorted to actions for habeas data to obtaininformation concerning government conduct, to learn the fate of disappearedpersons, and to exact accountability. Thus, these actions constitute importantmeans to guarantee the right to informational privacy and to enhance the“right to truth.”



The basic attribute of informational privacy is the right of individuals to control the flow of information involving them. To deprive individuals of their power to control or determine with whom to share information of their personal data would negate their right to their own person hood. The essence of the right to informational privacy goes to the very heart of a person's individuality, an exclusive and personal sphere upon which the state has no right to intrude absent any compelling interest.

As the erosion of personal privacy by computer technology and advanced information systems accelerates, the individual's ability to control their use diminishes. There is therefore a pressing need to provide for judicial remedies that would allow the summary hearing of the unlawful useof data or information and to remedy possible violations of the right toprivacy.

What do we see in the future?



A hundred years ago, it was the right over locational or situationalprivacy which was debated. The right to a physical space became the hotbedof constitutional and tort law controversies. The turn of this century hasgiven us a new field of battle in the right to privacy—the intangible worldcalled the Internet and the regional areas created by networks.9

Computer technology has advanced rapidly with the global Internet system.20 The computer systems tend to intrude upon privacy, as they manhandle personal information by disseminating evidence of present and past actions or associations, even without the individual’s consent. There is also the probability of introducing inaccurate information over which the individual has no control.21

Technology has developed rapidly that one’s presence may be monitored and catalogued just by a press of the palm, or the finger within the“blink of an eye.” These technologies, called biometric technologies, create a profile of persons in the workplace or in the public database depicting the habits of a person.

     The use of biometric technologies is on the rise in the Philippines.Since March of 1996, private companies and government agencies have adopted finger scan technologies in applications ranging from time management and payroll systems to security access control. Many companies use the technology primarily to reduce fraudulent time card punching.

Other uses of biometric technology in the Philippines include the dispensation of health care and social services; privacy systems for database and records protection; travel security systems with passport, ticket, and baggage verification; business, residence, and vehicle security with access and operator authentication; processing and circulation control in the20

10corrections or prison environment; and portable systems for on-scene recognition of individuals for use in law enforcement. National ID proposals also typically include fingerprints as part of the information available on the Id card.

As with all technologies, this may be prone to abuse and misuse.


Without doubt, computerization of government public records has made information easier to access. Many states consider driver's licensing files to be public records. Driving records generally contain the individual's full name, birth date, and address. Some countries even use an individual's Social Security number as the license number. In addition, voter registration,property records, and many court records are readily available. Beth Givens,director of the Privacy Rights Clearinghouse, has warned that, “[w]hen bit sand pieces of information are gathered from several sources, the brevity of some of those pieces can be misleading.”22 When compiling the bits and pieces of information from various public records, the accumulated data maybe sorted in many different ways to essentially create new records, which may be used for any range of reasons “beyond the original public policy reason for collecting them.”23 It is the totality of this information and how itis used that poses the greatest threat to an individual's privacy.



 Banks, telemarketers, credit card companies, and many other private companies also store information over their clients. Again, these information may be subject to misuse. Computers have enhanced the ability of individuals and companies to collect, store, organize, and disseminate information rapidly and with great ease. The government and the private sector use computers to collect personal information. Computers have created new ways to combine information, thus enabling the companies to create profiles of almost every individual. These profiles are easily transferable from one person or company to another and have become valuable commodities.

In the United States, identity theft has become a real problem.24Identity theft is among the “fastest growing financial crimes” in America with more than 500,000 victims each year.25 Identity theft occurs “when an individual appropriates another's name, address, Social Security number, or other identifying information to commit fraud.”26 It is very easy for criminals to obtain personal information. In public places, identity thieves may watch you at the automatic teller machine (“ATM”) as you punch in the personal identification number or they may listen to telephone conversations for a credit card number.27 Some identity thieves may even go through the trash to obtain records that reveal your name, address, and telephone


The increased use of computers has enabled the Internet to become a valuable source for identity thieves. The Internet is a tool that has made it easier and cheaper to access data on just about anyone. Identity theft is a violation of the right to informational privacy and may cause one to become burdened by the wrongful use of his personal information.Credit bureaus, the computerization of public records, and information brokers have also made it easier to obtain personal information. Credit bureaus provide credit reports, often including one's name, birth date, Social Security number, address, credit accounts and other public record information to credit grantors in an effort to help in determining whether to approve a loan.29 These and more, provide real dangers nowadays to one’s informational privacy and one’s right to life,liberty and security.




To end, it may be wise to remember the words of Justice Brandeis,who had the foresight to argue for the judicial recognition of the “right toprivacy.” In his dissenting opinion in Olmstead v. U.S. (which would laterbecome the majority opinion in Katz v. U.S.), Justice Brandeis wrote:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed,must be deemed a violation of the Fourth Amendment.

30Justice Brandeis also offered a reminder about governmental abuse ofpower that has special salience today:Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Menborn to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaningbut without understanding.31
The writ of habeas data was promulgated to protect the right toinformational privacy. The writ of habeas data is a remedy available to anyperson whose right to privacy in life, liberty or security is violated orthreatened by an unlawful act or omission of a public official or employee,or of a private individual or entity engaged in the gathering, collecting orstoring of data or information regarding the person, family, home andcorrespondence of the aggrieved party.32The promulgation of the writ of habeas data is but a small step toprotect informational privacy of the Filipino individual. More needs to bedone.Thank you and good day to all.

30 Olmstead v. U.S., 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).31 Id. at 479.32 §1, Rule on the Writ of Habeas Data, A.M. No. 08-1-16-SC, promulgated January 22, 2008, effectiveFebruary 2, 2008.