[Mirror] Lira, Maria Theresa Cherrie

SY 2011-2012, Second Semester


Legal Implication of Online Gazette

The right of the public to be informed on matters of public concern is one of the fundamental rights of the Filipino people as guaranteed by Section 7, Article III of the 1987 Philippine Constitution which provides:

Section 7. The right of the people to be informed 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 research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

To satisfy this requirement, Article 2 of the Civil Code posits that “Laws shall take effect after fifteen days following the publication in the Official Gazette” and as provided for in the E.O. 200 “ in a newspaper of general circulation in the Philippines.”

Be that as it may, no one can invoke “Ignorantia legis non excusat” since all important legislative acts and resolutions of a public nature of the Congress of the Philippines; executive and administrative orders and proclamations, except such as have no general applicability; decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published; such documents or classes of documents as may be required so to be published by law; and such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published, are now being published in the online Official Gazette at http://www.gov.ph.

The launch of electronic gazette on July 26, 2010 in the Philippines may sound revolutionary in the legal process but the downside of such has not yet been realized. Questions like 1) is online publication sufficient to satisfy the requirement of the law? 2) When will the 15 days reckon, is it from the moment the laws were published in the Internet? 3) Does the E-Commerce Law validate online publication? Those are questions that need not only clarification but basis and reference and until such time that no one will stand up to remove the cloud of confusion still these questions will remain unanswered.


Privilege of Striking Out Name of Acquitted Party in a Case in the Court Record

If a person is a party to a case, though acquitted, cannot invoke a right for his name to be taken out from the court record because it is the duty of the court to keep the record as guaranteed by Section 13 and 18 of Rule 136 of the Rules of Court which read as follows:

Section 13. Index; separating cases. — The general docket, judgment book, entries book and execution book shall each be indexed in alphabetical order in the names of the parties, and each of them. If the court so directs, the clerk shall keep two or more of either or all of the books and dockets above mentioned, separating civil from criminal cases, or actions from special proceedings, or otherwise keeping cases separated by classes as the court shall deem best.

Section 18. Docket and other records of interior courts. — Every justice of the peace and municipal judge shall keep a well-bound book labeled “docket” in which he shall enter for each case:

(a) The title of the case including the names of all the parties;

(b) The nature of the case, whether civil or criminal, and if the latter, the offense charged;

(c) The date of issuing preliminary and intermediate process including orders of arrest and subpoenas, and the date and nature of the return thereon;

(d) The date of the appearance or default of the defendant;

(e) The date of presenting the plea, answer, or motion to quash, and the nature of the same;

(f) The minutes of the trial, including the date thereof and of all adjournments;

(g) The names and addresses of all witnesses;

(h) The date and nature of the judgment, and, in a civil case, the relief granted;

(i) An itemized statement of the coast;

(j) The date of any execution issued, and the date and contents of the return thereon;

(k) The date of any notice of appeal filed, and the name of the party filing the same.

While the party may use a pen or stage name in good faith, he may not use fictitious name and concealing true name as provided for in Article 178 of the Revised Penal Code which read as follows:

Art. 178. Using fictitious name and concealing true name. — The penalty of arresto mayor and a fine not to exceed 500 pesos shall be imposed upon any person who shall publicly use a fictitious name for the purpose of concealing a crime, evading the execution of a judgment or causing damage. Any person who conceals his true name and other personal circumstances shall be punished by arresto menor or a fine not to exceed 200 pesos.

If this will be tolerated, society will be in a chaos since parties who are real culprits may take advantage of perpetrating crime and tortious acts without their names being published in the court record. The tendency is to employ high calibre lawyers who can assure them of acquittal which is absurd to the Filipino people.


Search and Seizure of Laptop in the Immigration

Filipinos are protected from unreasonable search and seizure by Section 2, Article III of the1987 Philippine Constitution which reads:

Section 2. The right of the people to be secure in their persons, houses, 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.

While we enjoy such right, will it protect us from a valid and random search and seizure of the content of a laptop while in the Bureau of Immigration? Will it be considered a violation of the privacy of the person as guaranteed by Section 3, Article III of our Constitution which posits:

Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

In the case United States v. Arnold, CR 05-00772 (A) DDP (C.D.Cal. Oct. 2, 2006), the government invoked the Border doctrine and read as follows:

On July 17, 2005, Michael Arnold arrived at Los Angeles International Airport (LAX) after spending a three week vacation in the Philippines. After retrieving his luggage, Arnold proceeded through the checkpoint at customs. Customs and Border Patrol (CBP) Officer Laura Peng saw Arnold waiting in line and selected him for secondary questioning. Peng questioned Arnold, and began inspecting his luggage, noting a laptop computer and several computer accessories. Peng instructed Arnold to turn on the computer so she could see if it was functioning. CBP Officer John Roberts was called to assist with the inspection while the computer was booting up.Among the icons displayed on the computer’s desktop, two were named “Kodak Pictures” and one was named “Kodak Memories.” Peng and Roberts opened these folders, began viewing the photos, and noted one that depicted two nude women. They further examined the computer and equipment, and found numerous images of what they believed to be child pornography.

Arnold was released, but his computer was seized by the agents. Federal agents obtained a warrant two weeks later. Arnold was charged with (1) knowingly transporting child pornography,[3] (2) knowingly possessing a computer hard drive and compact discs which both contained more than one image of child pornography,[3] and (3) knowingly and intentionally traveling in foreign commerce and attempting to engage in illicit sexual conduct with a person under 18 years of age.[4][5]

The crux of Arnold’s argument is that a laptop is very similar to a person’s home and the human mind, much more so than an ordinary container for data. His argument is based on the notion that a laptop has the ability to store a greater amount of data and personal documents, much like those stored in one’s home. He continued to argue that because a laptop is able to record ideas, e-mail, internet chats, and web-surfing habits, it is very similar to the “human mind.” Under these arguments he sought the protection of the Fourth Amendment, which states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”.[2]

Arnold also raised the exception that the government’s searches are limited in cases where they are of a “particularly offensive manner,” and argued that such was the case when CBP officers seized and searched his laptop.

The Electronic Frontier Foundation filed an amicus brief in support of Arnold.[6] The amici included the EFF and the Association of Corporate Travel Executives (ACTE). The brief argued that the government’s position and current practice subjects travelers to unconstitutional invasive searches of laptops and other devices. Their argument is similar to that already made by Arnold, and they contended mainly that a computer is different from a gas tank, suitcase, or other closed container because laptops routinely contain some of the most personal information about a person’s life. Moreover, the amici were concerned that a search would reveal information that is already protected under other statutes, including privileged legal communications, reporters’ notes from confidential sources, and trade secrets.

In summary, the main points of the brief are that: (1) people have a reasonable expectation of privacy in the information stored on their laptop computers; (2) searches of personal electronic information devices … are particularly invasive of personal privacy; (3) the volume of information stored on computers means that the privacy invasion of a laptop border search is enormous; (4) personal computers often contain information that the individual does not know about, or has even sought to erase; (5) laptop computer searches are indistinguishable from “general searches;” (6) there is a real risk of unconstrained “pretext” searches; and (7) the first amendment protects many of the contents on laptop computers.[6] The final point raised the worry that indiscriminate searches of information stored on laptops will discourage people from storing sensitive data, thus causing a chilling effect on speech.

A personal computer is among a person’s most private belongings. Laptop computers are virtual extensions of the mind, used to record and share our thoughts, feelings, and activities; indeed, “they are postal services, playgrounds, jukeboxes, dating services, movie theaters, daily planners, shopping malls, personal secretaries, virtual diaries, and more.” …[a]s a result, our laptop computers contain as much information about us as our homes contain – perhaps more.

Overall, the amici were concerned that unchecked compliance with the border doctrine would infringe too far on a citizen’s First and Fourth Amendment rights. In their view, the doctrine did not provide the protection that it was meant to enact, as technology now provides ways to maneuver around it. “…a smuggler’s ‘container of choice’ for electronic contraband is the internet. They may simply email it to themselves or post it online to avoid customs searches. A ruling that overturns the decision would not undermine the government’s ability to protect its borders.”[6]

In response to Arnold’s motion to suppress, the government argued two points. Firstly, the Fourth Amendment did not require reasonable suspicion because of the border doctrine. Secondly, even if reasonable suspicion were required, it was present.

The government argued that the United States has a duty take measures to ensure the safety of its interior. Past cases have stated that “it is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity.” In United States v. Ramsey, the court stated that “searches made at the border… are reasonable simply by virtue of the fact that they occur at the border…” [7] In the case of Arnold, the point that linked these two conclusions together was the notion that international American airports are the functional equivalent of a border, as stated in Almeida-Sanchez v. United States.[8]

Reference was also made to a history of searches of closed containers such as a briefcases, purses, wallets, pockets, pictures, film, and other graphic material. These items are the equivalent of a closed container, and have traditionally been searched at the border without particularized suspicion. It is acknowledged that some limits have been made, specifically a traveler’s alimentary canal. Such limitations are made when searching a person, not their objects in possession, in the interest of human dignity and privacy, which the Fourth Amendment protects.

The Court addressed the argument that the search of Arnold’s laptop was carried out in a particularly offensive manner, and was so destructive that it required particularized suspicion. The court acknowledged that there was no precedent to declare when a border search should be deemed unreasonable. The Supreme Court has left open the question of the circumstances that make a search particularly offensive, and thus unreasonable. However, the Court pointed out that Arnold never claimed that his laptop was damaged in any way during the government’s search.[2]

Even without a clear scale to determine how offensive a search may be, the Court dismissed the reasoning of the District Court that particularized suspicion was needed in the case of Arnold. The District Court based this decision on previous cases that related to search of the human body, not of property.


References:

[1] United States v. Arnold, CR 05-00772 (A) DDP (C.D.Cal. Oct. 2, 2006)

[2] United States v. Arnold, 533 F. 3d 1003 (9th Cir. 2008)

[3] 18 U.S.C. Section 2256(8)(A)

[4] 18 U.S.C. Section 2423(f)

[5] 18 U.S.C. Section 2423(c)

[6] EFF, Amicus brief in United States v. Arnold

[7] United States v. Ramsey, 431 U.S. 606 (1977)

[8] Almeida-Sanchez v. United States, 413 U.S. 266 (1973)

[9] United States v. Ickes, 393 F.3d 501 (4th Cir. 2005)

After reading this interesting case, it keeps me wondering what about in the Philippines, will it also be applied? Searching through the Internet, I found rare and vague local provisions which will help me to understand the stand of the Philippines in this issue.

As a member of the WIPO Convention. TRIPS and Paris Treaty, we may apply:

SECTION 1. Coverage. – This Rule shall govern the provisional seizure and impounding of documents and articles in pending and intended civil actions for the purpose of preventing infringement and preserving relevant evidence in regard to alleged infringement under Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines, Article 50 of the Agreement on Trade Related Aspects of Intellectual Property Rights, otherwise known as TRIPS and other related laws and international conventions.

SECTION 2. The writ of search and seizure. – Where any delay is likely to cause irreparable harm to the intellectual property right holder or where there is demonstrable risk of evidence being destroyed, the intellectual property right holder or his duly authorized representative in a pending civil action for infringement or who intends to commence such an action may apply ex parte for the issuance of a writ of search and seizure directing the alleged infringing defendant or expected adverse party to admit into his premises the persons named in the order and to allow the search, inspection, copying, photographing, audio and audiovisual recording or seizure of any document and article specified in the order.

SECTION 16. Seizure of computer disks or other storage devices. – The seizure of a computer disk or any storage device may be executed in any of the following manner:

(a) by the physical taking thereof;

(b) by copying its contents in a suitable device or disk provided by the applicant; or

(c) by printing out the contents of the disk or device with the use of a printer.

When the computer disks or storage devices cannot be readily removed from the computer to which they are fitted, the sheriff may take the subject computer from the custody of the alleged infringing defendant, expected adverse party or person in charge or in control of the premises or residing or working therein.

While our Rules on Criminal Procedure provides:

1.A warrantless search incidental to a lawful arrest

a. Arrest must be lawful

b. It must be contemporaneous with the arrest in both time and place

c. Within the vicinity of the person arrested, immediate control, which is the evidence of the offense or weapon

2. Search of evidence in plain view

3. Search of a moving vehicle

a. Must be cursory

b. Cant make a thorough search; just have to take a look; not to open trunks

4. Consented warrantless searches

a. The right exists

b. Person making the consent knows that he has the right

c. In spite of the knowledge of the right, he voluntarily and intelligently gives his consent

5. Customs searches

6. Stop and frisk

7. Exigent and emergency circumstances

8. Checkpoints

9. Republic Act requiring inspections or body checks in airports

10. Emergency

11. In times of war and within military operations

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