[Mirror] Salaum, Janale

SY 2011-2012, Second Semester

• The Right to Information is not absolute
• Is Search and Seizure on laptops or computers without warrant valid?

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The Right to Information is not absolute

Given a situation when you are about to take your vacation in Paris then suddenly you were approached by two officers from the customs and immigration in the airport informing you that they need to check the contents of your laptop and thereafter saw pornographic pictures. Can you invoke your constitutional right against illegal search and seizure?

Article III Section 2 of the Philippine Constitution provides:

The right of the people to be secure in their persons, papers, and effects against unreasonable searches and seizures 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 be 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 the persons or things to be seized.

A search is constitutional if it does not violate a person’s reasonable or legitimate privacy. As a general rule, things that are illegally search and seize are inadmissible of evidence. (Doctrine: The fruit of the poisonous tree). However, this is not an absolute rule hence subject to several exceptions.

Warrantless Searches and Seizures have long been deemd permissible by Philippine Jurisprudence in intances of 1. search of moving vehicle, 2. seizure of plain view, 3. customs searches, 4. waiver or consent of searches, 5. stop and frisk, and 6. search incidental to lawful arrest.

Philippine Immigration Law

Persons may lose the protection of the search and seizure clause by exposure of their person’s property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedure. Travelers are often notified through airport public address systems, signs, and notices in their airline tickets that they are subject to search and if a prohibited materials or substances are found, such would be subject to seizure.

Consent

The scope of consent to search is generally defined by its expressed object, and is limited by the breadth of the consent given. Agents may search a place or object without a warrant or even probable cause if a person with authority has voluntarily consented to the search. The authority to consent may be actual or apparent. It may also be explicit or implicit. Whether the consent was voluntarily given is a question of fact that the court must decide by considering the totality of the circumstances. The Supreme Court has identified the following important factors like the age, education, intelligence, physical and mental condition of the person’s giving consent; whether the person giving consent; whether the person was under arrest; and whether the person had been advised of his right to refuse consent. The government carries the burden of proving that consent was voluntary.

Consent to search may be revoked prior to the time the search is completed.

Computer Search and Seizure

In computer crime cases, two consent issues arise. First, when does a search exceed the scope of consent? And who is the proper party to consent to a search? Do parents, brothers or sisters, friends may give their consent to search of another’s laptop or computer?

The search must only be limited to the scope of its inquiry and consent encompasses their actual search hence in the case of United States vs. Turner when a detectives is searching for physical evidence on attempted sexual assault obtained written consent to search the defendant’s premises and personal property and the detectives explained to him that they were looking for more evidence of the assault that the suspect might have left and while searching one detective searched the contents of the defendant’s personal computer and discovered stored images of child pornography and thereafter he was charged with possessing child pornography. The court ruled that the search of the computer exceeded the scope and consent and suppressed the evidence.

Thus in United States vs. Brooks, an agent received permission to conduct a complete search of the defendant’s computer for child pornography. The agent explained that he would use a pre-search disk to find and display image files, allowing the agent to easily ascertain whether any images contained child pornography. When the disk, for unexplained reasons, failed to function, the agent conducted a manual search for images files, eventually discovering several pieces of child pornography. Although the agent ultimately used a different search methodology than the one he described to the defendant, the Court approved the manual search because it did not exceed the scope of the described disk search.

In general, only an individual unjustly traduced may only invoked violations against unreasonable search and seizure against the State. Hence, the legality of the seizure can be contested only by the party whose rights have been impared thereby, and that the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties.

In other words, the person’s constitutional right against search and seizure without warrant is not absolute. And given the situation above where you were approached by two public agents and check the contents of your laptops inside the airport seems not to be erroneous. The customs and immigration officers have the authority to do so. (one of the exceptions for a valid search and seizure without warrant is custom search and consent). Of course, you cannot argue with the officers that you do not allow them to open and search the files in your computer, (giving consent) because doing so may results to a violation of customs or immigration special laws.

Further, the law should not limit its definition of articles and personal belongings to the actual items or things. Due to the rapid evolution of technology, the law must not be keep in silence and limit its scope according to its narrow definition. The law should also flow in accordance with the present technology.

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Is Search and Seizure on laptops or computers without warrant valid?

The issue to resolve is whether or not a publication of the decision of the judiciary may be remove on the following grounds:

a. it would affect the reputation of the persons involved

b. it is discretionary hence the power to determine lies on the person whose in his opinion removal of such decision is necessary.

Article 3, Sec. 7 of the 1987 Constitution provides that:

The right of the people to information on matters of public concerns shall be recognized. Access to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen subject to such limitations as may be provided by law.

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 the freedoms of speech and of the press.

Its purpose is for the people to be entitled to information on matters of public concern and thus are expressly granted access to official records, as well as documents of official acts and transactions or decisions subject to such limitation imposed by law.

The right to information is not absolute. Restrictions on access to certain records may be imposed by law. Thus access restrictions imposed to central civil insurrection have been permitted upon a showing of immediate and impending danger that renders ordinary means of central inadequate to maintain order. Further, the right does not open every door to any and all information. Under the Constitution, access to officail records, papers etc.are subject to limitations.

In my opinion, if the reputation of the person will be affected, removal of the posting of the decision may be allowed provided the reason of such removal is valid and reasonable, provided that people should not also be deprived for the information.

As long as this information would affect the public interest i believe it must not be remove but if such information do not necessarily affects the public and affects the private interest instead, the removal is justifiable.