Americans were enraged when whistleblower Edward Snowden declared that the government was spying on them. According to the whistleblower, he was one of those whose job was to eavesdrop on phone conversations and access email communication without court authorization. This was shocking to the public because of well-established US jurisprudence that protects the people’s right to privacy of their communication.
Applying by analogy rules on when police authorities may stop individuals for the purpose of frisking them, the rule has only been that there has to be good suspicion at the very least; if not actual knowledge of the commission of a crime on the part of the police before they could intrude on a person’s private zone. Applied to communication on the telephone and on the Internet, authorities similarly could not access communication without suspicion or actual knowledge of commission of a crime, or when so authorized by a Judge.
Apparently, the US National Security Agency has been spying on the American people for quite some time already. And what is even more bothersome is that telecommunication companies, those who the people thought would be zealously guarding their privacy, have been voluntarily supplying the Federal government with real time date information . It would seem that these companies may have gone beyond identifying the existence of mail intended for an addressee. They may also have been providing access to the actual communication themselves and not just to data logs, the latter being the electronic counterpart of an envelope in snail mail
It would appear hence that what our own 20102 Cyber crimes Prevention Law seeks to achieve in its section 12, the real time gathering of data information, has been on-going in the United States for quite some time already. The good news is while the American Civil liberties Union only challenged this invasion of data privacy very recently, we in this country impugned this section of the Cyber crimes law at least 8 months before our American counterparts did. This is a rare instance when Philippine jurisprudence could influence the manner by which American courts decide on a constitutional issue.
The pertinent provision of the Philippines law reads: “SEC. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system”.
Solicitor General Francis Jardeleza pleaded that if there was one provision in the law that should be upheld, it should be this one. According to him: “it is an investigative tool that makes tracing, tracking and arresting hackers more efficient”.
The Sol-Gen explained “since hackers are faceless, the real-time collection of traffic data would enable law enforcers to locate and identify them through their IP or Internet Protocol address”.
Earlier, my colleague in UP Law, Jay-Jay Disini argued that access to these data log should require court authorization. He claimed that the people have an expectation of privacy on matters stated in our phone bill which includes the number called and when the call was made. He argued that like in everyday life, these information should remain private unless police authorities have at the very least suspicions of wrong doings.
Either way, the Philippine law appears to be an improvement because it will allow data gathering only where there is “due cause”. But as the Justices observed, without a definition of what this “due cause“ is, only the executive could define it and the definition may be all encompassing.
Meanwhile, in the United States, ACLU alleged that the eavesdropping is likely to have a “chilling effect” on those who want to contact them for redress of violations of their rights. They alleged that this policy of eavesdropping violates both the First and the Fourth Amendment of the US Constitution , or the rights to freedom of expression and freedom from unreasonable search and seizures.
Both Filipinos and Americans are eagerly awaiting our respective Supreme Court decision on this very important constitutional challenge. Meanwhile tough the Obama administration, not unlike Sol-Gen Jardeleza, has justified the policy as having successfully curtailed terrorist attacks in the United States. With this kind of defense, expect governments to continue their snooping despite intense public opposition thereto.
George Orwell was right after all.