tech and the law

QUESTION: Will R.A 10173 provide sufficient mechanism to the introduction of the national ID system in the Philippines, without the constitutional issues arisen in the case of Ople vs. Torrres (G.R. No. 127685 July 23, 1998)?

Tracing the root of the National ID System issue, it started when Petitioner Ople (in the case of Ople vs. Torres (G.R. No. 127685 July 23, 1998), prays that the court invalidate Administrative Order No. 308 entitled "Adoption of a National Computerized Identification Reference System" on two important constitutional grounds, viz:

1.

It is a usurpation of the power of Congress to legislate ; and

2.

it impermissibly intrudes on our citizenry's protected zone of privacy.

A.O. No. 308 was issued by President Fidel V. Ramos On December 12, 1996 and reads as follows:

ADOPTION OF A NATIONAL COMPUTERIZEDIDENTIFICATION REFERENCE SYSTEM

WHEREAS, there is a need 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;

WHEREAS, this will require 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;

WHEREAS, a concerted and collaborative effort among the various basic services and social security providing agencies and other government intrumentalities is required to achieve such a system;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby direct the following:

Sec. 1. Establishment of a National Compoterized Identification Reference System. A decentralized Identification Reference System among the key basic services and social security providers is hereby established.

Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee (IACC) to draw-up the implementing guidelines and oversee the implementation of the System is hereby created, chaired by the Executive Secretary, with the following as members:

Head, Presidential Management Staff

Secretary, National Economic Development Authority

Secretary, Department of the Interior and Local Government

Secretary, Department of Health

Administrator, Government Service Insurance System,

Administrator, Social Security System,

Administrator, National Statistics Office

Managing Director, National Computer Center.

Sec. 3. Secretariat. The National Computer Center (NCC) is hereby designated as secretariat to the IACC and as such shall provide administrative and technical support to the IACC.

Sec. 4. Linkage Among Agencies. The Population Reference Number (PRN) generated by the NSO shall serve as the common reference number to establish a linkage among concerned agencies. TheIACC Secretariat shall coordinate with the different Social Security and Services Agencies to establish the standards in the use of Biometrics Technology and in computer application designs of their respective systems.

Sec. 5. Conduct of Information Dissemination Campaign. The Office of the Press Secretary, in coordination with the National Statistics Office, the GSIS and SSS as lead agencies and other concerned agencies shall undertake a massive tri-media information dissemination campaign to educate and raise public awareness on the importance and use of the PRN and the Social Security Identification Reference.

Sec. 6. Funding. The funds necessary for the implementation of the system shall be sourced from the respective budgets of the concerned agencies.

Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit regular reports to the Office of the President through the IACC, on the status of implementation of this undertaking.

Sec. 8. Effectivity. This Administrative Order shall take effect immediately.

DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen Hundred and

Ninety-Six.

(SGD.) FIDEL V. RAMOS

A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997 and January 23, 1997. On January 24, 1997, petitioner filed the instant petition against respondents, then Executive Secretary Ruben Torres and the heads of the government agencies, who as members of the Inter-Agency Coordinating Committee, are charged with the implementation of A.O. No. 308. On April 8, 1997, we issued a temporary restraining order enjoining its implementation.

Petitioner contends:

A. THE ESTABLISNMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.

B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.

C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION.

Respondents counter-argue:

A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD WARRANT A JUDICIAL REVIEW;

B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS;

C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM THE BUDGETS OF THE CONCERNED AGENCIES;

D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY

This case was decided in favor of the petitioner. The court held that; A.O. violates the right to privacy

In striking down A.O. 308, the SC emphasized that the Court is not per se against the use of computers to accumulate, store, process, retrieve and transmit data to improve our bureaucracy. The SC also emphasized that the right to privacy does not bar all incursions into the right to individual privacy. This right merely requires that the law be narrowly focused and a compelling interest justify such intrusions. Intrusions into the right must be accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions.

The right to privacy is a constitutional right, granted recognition independently of its identification with liberty. It is recognized and enshrined in several provisions of our Constitution, specifically in Sections 1, 2, 3 (1), 6, 8 and 17 of the Bill of Rights. Zones of privacy are also recognized and protected in our laws, including certain provisions of the Civil Code and the Revised Penal Code, as well as in special laws (e.g., Anti-Wiretapping Law, the Secrecy of Bank Deposit Act and the Intellectual Property Code).

The right to privacy is a fundamental right guaranteed by the Constitution. Thefore, it is the burden of government to show that A.O. 308 is justified by some compelling state interest and that it is narrowly drawn. The government failed to discharge this burden.

A.O. 308 is predicated on two considerations: (1) the need to provide our citizens and foreigners with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities and (2) the need to reduce, if not totally eradicate, fraudulent transactions and misrepresentations by persons seeking basic services. While it is debatable whether these interests are compelling enough to warrant the issuance of A.O. 308, it is not arguable that the broadness, the vagueness, the over breadth of A.O. 308, if implemented, will put our people’s right to privacy in clear and present danger.

The heart of A.O. 308 lies in its Section 4 which provides for a Population Reference Number (PRN) as a “common reference number to establish a linkage among concerned agencies” through the use of “Biometrics Technology” and “computer application designs.” Biometry or biometrics is “the science of the application of statistical methods to biological facts; a mathematical analysis of biological data.” The methods or forms of biological encoding include finger-scanning and retinal scanning, as well as the method known as the “artificial nose” and the thermogram. A.O. 308 does not state what specific biological characteristics and what particular biometrics technology shall be used.

Moreover, A.O. 308 does not state whether encoding of data is limited to biological information alone for identification purposes. The Solicitor General’s claim that the adoption of the Identification Reference System will contribute to the “generation of population data for development planning” is an admission that the PRN will not be used solely for identification but for the generation of other data with remote relation to the avowed purposes of A.O. 308. The computer linkage gives other government agencies access to the information, but there are no controls to guard against leakage of information. When the access code of the control programs of the particular computer system is broken, an intruder, without fear of sanction or penalty, can make use of the data for whatever purpose, or worse, manipulate the data stored within the system.

A.O. 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 A.O. 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. The possibilities of abuse and misuse of the PRN, biometrics and computer technology are accentuated when we consider that the individual lacks control over what can be read or placed on his ID, much less verify the correctness of the data encoded. They threaten the very abuses that the Bill of Rights seeks to prevent.

RA 10173 aims to protect the fundamental human right of privacy of communication while ensuring free flow of information to promote innovation and growth. The Act fundamentally secures and protects the confidentiality, as well as the integrity of personal information in both government and private sectors. It sanctions unauthorized disclosure of personal information. The statute as well established a directive that a person should give information by virtue of his free will and full understanding of the purpose it is intended to be used. It also guards journalists and publishers for they cannot be compelled to reveal their sources.

The subject law provides for the creation of a National Privacy Commission in order to monitor and ensure compliance of the country with the international standards for data protection.

The passage of the Data Privacy Act may well tender each and everyone of us the crucial peace of mind in disclosing vital information indispensable for our various trades, may it be personal or business dealings, knowing that our right to information privacy is shielded by the law’s mandate against possible abusers. Accordingly, it is expected to promote investment in the rapidly emerging information technology and business process outsourcing industries in the country. Conversely, it would make individuals and entities be more vigilant of the possible consequences of misuse and abuse of information, ensuing to a more responsible use of information technology.

RA 10173 is indeed a crucial law in the current digital age. It could really be of immense value to one and all of us, over and above that it could be of great benefit to our nation as a whole. At this time, proper implementation and observance of the new law are the critical keys to realize its well-settled aspirations

  

In response to the question of will R.A 10173 provide sufficient mechanism to the introduction of the national ID system in the Philippines, without the constitutional issues arisen in the case of Ople vs. Torrres (G.R. No. 127685 July 23, 1998), I take the stand to answer yes.

I believe that R.A no. 10173 can stand alone to push through the innovative and more convenient purpose of A.O No. 308. As stated in the declaration of policy under sec. 2 of Data Privacy Act of 2012 (R.A 10173); It is the policy of the State to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth. The State recognizes the vital role of information and communications technology in nation building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected. We cannot deny the fact that technology is unstoppable in terms of improvement that even the law itself which primarily protect new inventions has to adapt with the technology’s improvements. The intention of the new act can go side by side with A.O. No. 308 to protect primarily the privacy right of an individual even without quoting relevant constitutional provisions.

If there is one vital issue regarding the intention of A.O No. 308 which can be raised by non-supporters over and over, that would be the impermissible intrusion on our citizenry's protected zone of privacy. There’s always this fear of possible unwarranted disclosure of confidential matters enormously accumulated in computerized data banks and in government records relating to taxes, public health, social security benefits, military affairs, and similar matters. But let us also not forget, that we have a sufficient number of laws particularly criminal law prohibiting and punishing any such unwarranted disclosures and the civil law which provides remedy for possible civil damages that it may bring. R.A No. 10173 seemed to be very supportive of the said laws. The scope of the act is clear, the act applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those 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 subject to the immediately succeeding paragraph: Provided, That the requirements of Section 5 are complied with.