Search Me

By Obiter 07

We have increasingly come to rely on electronic files for our everyday lives, from to-do lists, letters, resumés to journals, revealing our innermost thoughts and feelings, our rants and raves. This is why governments would like to tap into these files to track or catch possible criminal behavior. Criminals or not, we are well advised to know how our privacy rights stand with respect to personal electronic information and the government’s inclinations.

The Constitution proscribes unreasonable searches and seizures. Simply put, a man’s home is his castle and his person is likewise sacrosanct. No one can just barge in to search for or even get things or items from him. There must be a search warrant which describes the things to be seized. And it should only issue after a judge has heard evidence to justify the same. A man’s letters also enjoys the same protection. Anything obtained in violation of these rules cannot be used against him.

However, a U.S. court (U.S. v. Romm, No. 04-10648 ) has held that the border guard can indeed take a look at your personal laptop files. An individual was turned back from Canada after his previous conviction for solicitation of a minor turned up. At his return to the U.S., a search was made of his laptop where child pornography was found. He had merely viewed the images and did not download them. But the images were retained in his laptop’s temporary internet caché which was accessed by the authorities and later used against him. So be careful what you surf.

Then in a later case [U.S. v. Arnold, No. 2:05-cr-00772 (C.D. Calif.)], it was held that an individual has privacy rights to his laptop files which can only be accessed if there is reasonable suspicion and not otherwise, even though the government argued that it was a routine search. To distinguish from the earlier case, the man involved here had no previous criminal record even though he was also into child pornography as well. A clean record helped this man no matter how dirty he is now.

Not only can authorities find cause to search your files but they can also find someone else to consent to the search on your behalf. At least that was the decision in the case of U.S. v. Andrus (No. 06-3094 (April 25, 2007)]. The court likened a password-protected computer to a locked suitcase or a padlocked footlocker in a bedroom which raises the expectation of privacy by the owner. And that the legitimacy of a search now turns on an officer’s belief that a third party had authority to consent. In this case, the court refused to suppress the evidence as the father had consented to the search of his son’s computer. Lesson: You have to keep your relatives happy lest they turn against you.

Normally, the warrant should specify everything that is to be seized and those not mentioned cannot be touched. However, the Supreme Court has ruled that when a search warrant refers to a “computer machine” as an item to be seized it necessarily includes diskettes. So it would not pay to hide files on movable media like flash disks and CD-ROMs as they can be seized as well. One question could be raised whether this would cover an email address accessed through that computer. Can the police extend the warrant to cover the virtual mailboxes that are connected to a user’s computer?

In the U.S., an employee termination based on “inappropriate” e-mail has been upheld as not violative of the right to privacy nor of any public policy since “the company’s interest in preventing inappropriate and unprofessional comments…over its e-mail system” would outweigh any privacy interest.” Employees do not appear to enjoy privacy rights or have a lesser expectation of privacy with respect to computer systems in the workplace. So do keep from sending that rant about your boss or hold off until you get to a computer away from your jobsite. And even then, don’t send it to someone in the office. That email may get you fired.

Privacy rights are currently being challenged and the Philippines is no exception what with Republic Act 9372, “AN ACT TO SECURE THE STATE AND PROTECT OUR PEOPLE FROM TERRORISM otherwise known as the “Human Security Act of 2007.” Among others, it allows the surveillance of suspects and the recording of communications upon written order of the Court of Appeals using any mode of electronic or other surveillance or intercepting and tracking devices. It is currently being questioned in the courts.

If a tree falls in the forest and no one is around to hear it, does it make a sound? We can likewise ask, if your files are accessed surreptitiously or your conversations bugged without your knowledge, is still a violation of your rights? It should be, but unless we get to know about it, we cannot assert any of our rights. It is sort of a catch 22, when your rights have to be violated before you can act to protect them. Actually, we should not be worrying since the idea is that those in power will also protect those who are powerless. But it is easy to justify in a post 9-11 world of terror and threats that certain excesses are justified or even needed. However, if there is one thing that history teaches us, it is that those who sleep on their rights get to lose them. So it pays to be watchful of our watchers as well, no matter how noble their intentions might be.

Sources:
1 PEOPLE vs. BURGOS [G.R. No. 92739, 02 August 1991.]

2 Please see Smyth vs. Pillsbury, 54 USLW 2564 (E.D. Pa. 1999) and Mclaren vs. Microsoft Corp., 1999 W.L. 339015 as cited in Introduction; Privacy in the Workplace, Course Material, Privacy in Cyberspace, Berkman Center, Harvard Law School, p.8.

3 SEC.7. Surveillance of Suspects and Interception and Recording of Communications. - The provisions of Republic Act No. 4200 (Anti-wire Tapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways and means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.
Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized.

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