REACTION
PAPER ON
"AN ACT PROTECTING
INDIVIDUAL PERSONAL INFORMATION IN
INFORMATION AND
COMMUNICATIONS SYSTEMS IN THE
GOVERNMENT AND THE PRIVATE
SECTOR, CREATING FOR THIS
PURPOSE A NATIONAL DATA
PROTECTION COMMISSION, AND FOR
OTHER PURPOSES.”
1. In the period of modern
world, Information Technology has ruled the world and continuously invading
people’s lives one way or another, affecting not only the way they do their
respective jobs but as well as their personal and family matters. Having said that, issue and problems with
regards to securing and protecting data and information has emerged. It is meritous enough to know that the
government had taken a big step to control, though not to totally suppress the cancerous effects of this information technology
dilemma, that not only put our personal lives in danger, but also the national
security of the state.
2.
This
act considers the supremacy of the Constitutional provision with regard to
inviolability of private communication and correspondence as provided by
“Article III Section 3. (1) of the
1987 Constitution; 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.cral
(2) Any evidence obtained in violation
of this or the preceding section shall be inadmissible for any purpose in any
proceeding.”
This act considers that it is the
policy of the State to protect the fundamental human right of privacy of
communication. 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.
3. Though the government
wanted to protect the individual’s personal information and communication in
the government and in the private sector, this act has its expressly provided
defects as the following:
a)
Section 3 (h) of this
act-Personal information controller-refers to a
person or organization that controls the collection, holding, processing or use
of personal information, including a person or organization who instructs
another person or organization to collect, hold, process, use, transfer or
disclose personal information on his or her behalf. The term excludes:
a.1) A person or
organization who performs such functions as instructed by another person or
organization; and
a.2) an individual, who
collects, holds processes or uses personal information connection with the
individual's personal, family or household affairs.
This
provision has reminded me of what had happened in the recent impeachment
proceedings where in ombudswoman Conchita Carpio-Morales, sent a letter to
Anti-Money Laundering Agency under the Bangko Sentral ng Pilipinas which immediately
released not only personal information but a highly sensitive information to
the detriment of not only an ordinary individual but the Chief Justice of the Philippines
4.
SEC. 4. Scope.
- This 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 the Philippines subject to the
immediately succeeding paragraph: Provided,
further, That the requirements of Section 5 are complied with.
This Act does not apply to
the following:
Information necessary in order to
carry out the functions of public authority which includes the processing of
personal data for the performance by the independent central monetary authority
and law enforcement agencies of their constitutionally and statutorily mandated
functions.
This
provision will definitely open doors for possible abuses not only by the
government officers and employees may exercise against an ordinary citizen but
most especially the law enforcements who can just invoke that they need the
said information in line with their function as agents of national security and
safety. For me there is a need that
proper determination of probable cause as to the need to acquire such
information for whatever purpose, from a judge who will determine and weigh the
evidence or pieces of evidence for granting such request to process the
information. That is the principal
reason, and, me personally, do not like the idea of the commission being
created by this act be under the office of the president, but rather be an
independent body under the supervision and control by the judicial branch of
the government to avoid possible violations of the constitutionally provided
rights of the people, and be an instrument to protect and secure their persons
as individual.
”Article
III Section 2 of the 1987 Constitution-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.”
5.
As
regards section 6 of the act entitled functions of the National Privacy
Commission-To administer and implement the
provisions of this Act, and to monitor and ensure compliance of the country
with international standards set for data protection, there is hereby created
an independent body to be known as the National Privacy Commission, which shall
have the following functions:
(a)Ensure compliance of personal
information controllers with the provisions of this Act;
(b)Receive complaints, institute
investigations, facilitate or enable settlement of complaints through the use
of alternative dispute resolution processes, adjudicate, award indemnity on
mailers affecting any personal information,
prepare reports on disposition of complaints and resolution of any
investigation it initiates, and, in cases it deems appropriate, publicize any
such report, provided that in resolving any complaint or investigation (except
where amicable settlement is reached by the parties), the Commission shall act
as a collegial body. For this purpose, the Commission may be given access to
personal information subject of any complaint and to collect the information
necessary to perform its functions under this Act:
This
very provision then again will open doors to possible infringement as well as
violation of the constitutionally provided right of the people to privacy of
their communication and correspondence for the basic reason that it is a ground for the government may look at the
personal and sensitive information’s of an individual raising the fact that
such act is line with the basic function of the government’s officer or
employee. We have to be mindful that
such privacy was enshrined by the fundamental law of the land giving such
higher importance rather than those conferred by ordinary law. In relation to anti-wire tapping law or
Republic Act 4200, the latter provides that the law enforcement officers and
employees must not only aver that such tapping or recording of private
communication is in line with their function but also to provide grounds for
the court or judge be persuade to determine the presence of probable cause for
the commission of crimes as provided by the said special law granting issuance
of court order to tap the wire of the subject.
In the said law there is ground rules for such be made enforceable
against the will and consent of an individual, and I find it highly
unreasonable that such prior determination by a judge of a presence of probable
cause be omitted as a requirement for allowing the use of private individual’s
information.
6. Section
7 of the act provides that the commission to be established by this act shall
be under the office of the president.
On this note, again my fear of giving too
much power to the executive department will put any individual’s right at
risk. The president can use all the
machinery of the government by destroying every individual that will run
counter to his plans in the absence of reasons, an ordinary man should
observe. Furthermore, by attaching this
commission under his control, will put every man’s secret whether private,
personal or public information be at his mercy and discretion to which was
principally being protected by the creation of the Constitution, the principal
tool to limit the police power of the state, which the government considers as
its ultimate weapon.
7.
In relation to the
preceding paragraph, section 7 of the act further mentioned that “No criminal
or civil proceedings shall lie against the privacy Commissioner, the Deputy
Privacy Commissioners, or any person acting on their behalf or under their
direction, for anything done, reported or said in good faith as a result of the
performance or exercise or purported performance or exercise of any duty or
power under this Act.
This
provision will aggravate the situation of possible abuses government officials
that will compose the commission. As a
government official, they are bound to serve the public with good faith and
fidelity and must be answerable to the people, whom they are serving in the
event of derogatory, dishonest and baseless act in whatever degree. They should not forget that as a public
servant their acts are consistently under the scrutiny of the public and the
community. They should, at all times
prevent themselves from losing the trust and confidence reposed upon them by
the sovereign people; otherwise they should step down from performing their
sworn duty.
This
provision gave every public official that will compose the commission every
right to do whatever they want in the absence of reasons with a thinking that
they are untouchables provided they have to aver that what they are doing are
within the ambit of their functions.
8.
As regard section 8 of the
act The Secretariat. – “The
Commission is hereby authorized to establish a Secretariat Majority of the
members of the Secretariat must have served for at least five (5) years in any
agency of the government that is involved in the processing of personal
information, Social Security System (SSS), Government Service Insurance System
(GSIS), land Transportation OfJ1ce (LTO), Bureau of Internal Revenue (I3IR),
Philippine Health Insurance Corporation (Philhealth), Commission on Elections
(Comelec),”
As
much as I wanted to have personnel in the said commission to be experienced in
the field of information and technology, I wanted to have majority of the commission
coming from the private sector. I wanted
people that will control and secure everybody’s information to be not part of
the bureaucracy and undying politicking.
Those that will be coming from the private sector, knows what should be
protected and what should be limited and be open for state and public
consumption. They will have fresh
ideology, to which to my mind the government has to have to have a solid
foundation in doing their mandated task.
9.
Regarding
the provision of section 11 of the act-Sensitive Personal Information and Privileged Information. – The
processing of sensitive personal information and privileged information shall
be prohibited, except in the following cases:
( a) The data subject has given his or
her express consent, specific to the
Purpose prior to the processing;
(b) The processing of the same is
provided for by existing laws and regulations: Provided, that such regulatory enactments guarantee the
protection of the sensitive personal information and the privileged
information:
Provided,
further, That the consent of the data subjects
are not required by law or regulation permitting the processing of the
sensitive personal information or the privileged information.
By
this provision, especially the last sentence, alerts me of the possible
intrusion of government officers to the private information of an
individual. I want to then again relate
this scenario to Republic Act no. 4200 or the Anti-Wire Tapping Law. Such law specifically provides that the
government, especially the law enforcements such as the PNP and the Armed
forces of the Philippines, can only be allowed to record, wire tap or overhear
private communications of an individual provided an order from the court can be
secured after the proper determination of the judge finding probable cause of
the existence of crimes specified by the said law. On this note, without such prior
determination of the court, in the exercise of their judicial power,
transgression to individual rights is apparent.
A clear defiance of foundation to which the Constitution of the Philippines
10. SEC.
23. Accessing Personal Information and
Sensitive Personal'
Due
to Negligence. –
a) Accessing Personal Information due
to negligence shall be penalized by imprisonment ranging from one (1) year to
three (3) years and a fine of not less than Five Hundred Thousand Pesos (Php
500,000.00) but not less or more than Two Million Pesos (Php 2,000,000.00)
shall be imposed on persons who, due to negligence, provided access to personal
information without being authorized under this Act or any existing law.
b) Accessing Sensitive Personal
Information due to negligence shall be penalized by imprisonment ranging from
three (3) years to six (6) years and a fine of not less than Five Hundred
Thousand Pesos (Php 500,000.00) but not more than Four Million Pesos (Php
4,000,000.00) shall be imposed on persons who, due to negligence, provided
access to personal information without being authorized under this Act or any
existing law.
This
provision to reminds me of the provision of the Philippine’s Constitution
regarding due process clause and the equal protection clause
“Article
III Section 1-No person shall be deprived of life,
liberty, or property without due process of law, nor shall any person be denied
the equal protection of the laws.”
It
is highly unreasonable that an intentional criminal act and an unintentional
act through negligence will be imposed the same penalty. The commissioners have to use graduated scale
of penalty to observe the constitutional provision regarding due process and
equal protection clause.
There
is a need that this office be under the supervision of the Judiciary, if not
control, to help them, the government officers, determine the presence of
intent to malign an individual or the state, especially doing so a person’s
liberty and life are at stake. The act
should also provide proper hearing and trial to give a person an opportunity to
defend oneself directly in line with the due process clause to which the court
and administrative tribunal has to observe.
Life, liberty and property as the basic elements why the Constitution
was created, to regulate the government to exercise its three inherent powers,
such as: police power, eminent domain and taxation by affording due process to
every individual.
The
government has to always bear in mind that they are created together with the
officers to serve the people. To provide general welfare and to observe good
faith and fidelity in rendering public service since people’s trust and
confidence were reposed on them.
11. As much as I wanted to be
glad by the passing of this act before the House and the Senate, I want to
reiterate my deepest concern to people’s right.
Such rights define who we are as a sovereign state. People created the state as well as the
government, all actions of the latter depicts the enormous power conferred by each
and every one of us. Such power bestowed
to the executive, legislative and judiciary are only part and parcel of what
every citizen has. The latter only lent
such power to government officials and employees, and not the other way
around. Such acts, laws and statutes
should always bear in mind the welfare of the people to whom they are created
for.
12. Although, the exercise of
life, liberty and property are not absolute, but limiting such requires due
process and equal protection. We
need a government for the people, to the people and of the people.
Prepared by:
Jayson A. Ramos, CPA
Student#2008-0283
Executive Class
Saturday 4-6PM
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