LAWBYTES 125: DATA PRIVACY, DETECTIVE AGENCIES AND THE TRAGIC AMY BOYER’S LEGACY, ATTENTION: NATIONAL PRIVACY COMMISSION (Copyright by Dr. Atty. Noel G. Ramiscal)

One of several heartrending true stories that I recount in my lectures on Data Privacy and on Sexual Orientation Gender Identity and Online Violence, [like the MCLE series of the University of Cebu (UC) and the students of UC last April 27 and 29 of this year], was the case of Amy Boyer. She was a victim of cyberstalking and murder at the hands of a former classmate in 8th grade, whom she had no idea was obsessed with her: Liam Youens.

When their lives took them to different places, Liam continued his obsession with her online. He developed a public website with her name as part of the URL. In this website he documented his violent passion for Amy and the means and ways that he intended to kill her. He went so far as to declare that his greatest regret was in not having killed her in 8th grade.

In order to accomplish his lifelong mission, Liam engaged the services of an online private investigation and information service “Docusearch.com”, in order to obtain the current whereabouts of Amy. Docusearch.com is in the business of procuring and selling pieces of online information about anything or anyone, no questions asked, so long as the price is right and is paid upfront. Its president, Daniel Cohn, is a licensed private investigator in Florida.

Liam contacted Docusearch through its Internet website and requested the date of birth for Amy Lynn Boyer. He gave Docusearch his name, New Hampshire address, and a contact telephone number and paid the $20 fee by credit card. Docusearch provided Liam with the birth dates for several Amy Boyers, but none was for the Amy Boyer sought by him.
On succeeding days, Liam ordered and paid for Amy’s social security number (SSN) which costed $45 fee by credit card, and paid $109 fee twice by credit card for Amy’s employment information. He also requested a “locate by social security number” search for Amy and paid the $30 fee by credit card. Docusearch finally informed Liam of Amy’s employment address at Dr. John Bednar’s office at 5 Main Street, Nashua, New Hampshire. Docusearch acquired this address through a subcontractor, Michele Gambino, who had obtained the information by placing a “pretext” telephone call to Amy in New Hampshire. Gambino lied about who she was and the purpose of her call in order to convince Amy to reveal her employment information. Gambino had no contact with Liam, nor did she know why Liam was requesting the information.

Over a month after finding out where Amy worked, Liam drove to her office, patiently waited for her to come out, fatally shot her, and then killed himself.

The Estate of Amy Boyer sued Docusearch and the case went all the way to the Supreme Court of New Hampshire. The court held among others that private investigators who do not know the purpose or the reason why their client is seeking the information, “creates a foreseeable risk of criminal misconduct against the third person whose information was disclosed” to the client. Private investigators can be held liable by the third person or his/her heirs who suffered from the misconduct caused by the private investigator’s client who acted on the information given by the private investigator.

The New Hampshire Supreme Court discussed the possible deleterious effects of two crimes that are involved which are perpetrated with the use of private investigators: identity theft and stalking, of which Amy Boyer was a victim. “The threats posed by stalking and identity theft lead us to conclude that the risk of criminal misconduct is sufficiently foreseeable so that an investigator has a duty to exercise reasonable care in disclosing a third person’s personal information to a client.” Furthermore, any pretextual phone call or communication by the private investigator based on deception to gather personal information from an unsuspecting 3rd party could be held liable by the 3rd party. Amy’s death brought to the fore the dangers of the unauthorized disclosure of SSN that a law was passed prohibiting the sale or dissemination of SSNs without a legitimate purpose.

Prior to the passage of the Philippine Data Privacy Law (R.A. 10173), I was a Consultant of the former Commission on Information Communication and Technology (CICT) on the separate bills covering cybercrimes and data privacy. I gave a white paper on the Data Privacy Bills which delineated several concerns I had, amongst them, the deleterious impact of the bills on the livelihood of scores of private detective agencies scattered all over the regions of the Philippines.

Private detective agencies under the Data Privacy Law and the Philippine Cybercrime Prevention Act (R.A. 10175) have no express legal authority or legal exemption to collect, process, preserve, or destroy any form of electronic data that constitutes personal information of any data subject, without first informing and getting the written consent of the data subject him/herself. Thus, the surreptitious methods, pretexting and covert operations that detective agencies do to acquire e-data would run contrary to the Data Privacy Law and make them liable to criminal and civil penalties with damages in favour of the data subjects they targeted.

In my lectures, I have mentioned that it is crucial that the National Privacy Commission (NPC) come up with an advisory opinion or proper Guidelines as to the parameters of the allowed operations or processing of personal information of data subjects by commercial and private information brokers like detective agencies. Without such Guidelines, all detective agencies in the Philippines are vulnerable to criminal charges of being data privacy violators.

In closing I would like to thank the very gracious, generous and great UC founder, Atty. Augusto W. Go, the very efficient, understanding and accommodating MCLE Committee and UC staff, the very bright and promising UC law students, and three amazing, gorgeous UC lawyers: Attys. Ria Lidia Espina, Annie Tan and Josh Carol Ventura! My mom and I are truly grateful for the splendid time we had there. Our compliments to the spacious, unpretentious and comfortable Alicia Apartelle which served some of the best crispy pata and lechon kawali we ever tasted! Deo Gratias!

DOMESTIC VIOLENCE GONE VIRAL: THE RISE OF INTERNET INTIMATE TERRORISM

September 16, 2014 was a momentous occasion in Dr. Atty. Noel G. Ramiscal’s IT Law evangelism and advocacy. In a three hour Prescribed Mandatory Continuing Legal Education (MCLE) lecture he delivered for the University of the Philippine Institute of Administration of Justice (UP IAJ), he expounded on the rising phenomenon of the utilization of the Internet and electronic communication and innovation devices by intimate partners, estranged lovers, and even by strangers to commit violence, on many levels, against their targeted victims, online and in real time. He suggested the title of his lecture to the UP IAJ and dedicated his entire lecture to his two women friends who did not survive domestic violence.

Dr. Atty. Noel G. Ramiscal’s photo during his September 16, 2014 MCLE Lecture

Dr. Ramiscal began his discussion by analyzing domestic violence in a global context, presenting the “typologies” of domestic violence, the batterers and their victims, and citing the various estimates as to the costs of domestic violence to employers and the victims, from hospitalization expenses, loss of quality of life, and finally, the loss of life. He tackled several troubling issues not addressed by the current Philippine law (Republic Act 9262), related laws and rules concerning protection orders for victims of domestic and/or intimate violence. While the Philippine Supreme Court has already ruled in Garcia v. Drilon that Republic Act 9262 applies to lesbians, there was no pronouncement of the law’s applicability to transsexual females and transsexual males. The law itself did not define exactly what it meant to be a “woman” and this non-clarity in other laws as well, continues to contribute to the difficulties, legal and otherwise, suffered by Philippine citizens who have undergone or are in the process of undergoing gender reassignment surgeries, in dealing with their rights and status conferred by law, based on their original gender. Along with transsexual individuals, gay men (who are excluded from Republic Act 9262 because they are biologically male) suffer a high degree of intimate violence apparently not recognized by mainstream society, and exacerbated by prejudices which in some societies are justified and institutionalized. These were observed and validated by several scholarly studies and research including “The Trans Murder Monitoring Project” and even noted by the UN Special Rapporteur on Torture.

Dr. Ramiscal then proceeded to discuss the many ways intimate batterers use the internet, electronic devices and social media sites to control their prey. Intimate Internet batterers start out young, as Dr. Ramiscal noted from the studies of several organizations like the Associated Press, MTV, and the Liz Claiborne Inc. Young adults from 13 to 24 at least in the US have experienced high degree of cyberstalking, offensive texting, demeaning online behaviour and manipulative controlling tactics directed against them by their intimate partners. Sexting with fatal results have already been the subject of several bills in the US. Jilted lovers, obsessive violent partners and husbands have used emails, keylogger hardware and software malware, social media, and implanted global positioning devices on their partners’ cars and mobile phones to monitor, damage and terrorize their partners to submission. Some have even electronically impersonated their prey to invite others to rape and harm their prey. Those intending to flee are faced with seemingly enormous issues particularly if they had been financially or emotionally dependent on their abusive partners for quite some time. Dr. Ramiscal discussed a catalogue of cases in the US and the Philippines which evidence judicial disregard for the needs, safety and welfare of victims of domestic violence.

As part of his advocacy, Dr. Ramiscal presented over fifteen recommendations that are intended to overhaul the gaps in Republic Act 9262 and other pertinent laws in protecting those terrorized by intimate batterers and help them survive. These included measures from the application of danger/lethality assessment tests to the batterers by the courts, to crafting precise and detailed protection orders that will take into account the threats posed in cyberspace by intimate batterers, to possible legal corrective/preventive measures using technological devices on intimate batterers, to the correct application of evidentiary rules on electronic data in prosecuting intimate batterers, to establishing appropriate educational curricula on intimate violence, and to legal measures that can be taken to protect the victims of intimate violence to insure their survival. He also pointed out that amending the current Supreme Court Administrative Matter. No. 04-10-11-SC , October 19, 2004, RE: RULE ON VIOLENCE AGAINST WOMEN AND THEIR CHILDREN, in terms of the scope, and remedies (including technological fixes) available to victims that can be subject of protection orders.

At the end of his lecture, Dr. Ramiscal emphasized the need to consolidate the legislative and judicial reforms that impact on the survival of those who have undergone this most rabid form of violence, particularly since the Philippine cybercrime courts have yet to be established, and the rules on electronic evidence have yet to be amended since they were promulgated almost fifteen years ago. Dr. Ramiscal appealed to the lawyers present to help in this regard since they were apprised by him of the significant legal and practical gaps.

As usual, Dr. Ramiscal desires to thank the UP IAJ Head, Atty. Daway, and the helpful legal and resource staff (Attys. Arevalo and Miñoza, Mesdames Perez and Antonio and Messrs. Ariel and Raffy) team for giving him this opportunity to share the fruits of his research and hard earned lessons, as well as to honor the memory of his two friends. NO ONE HAS TO DIE FROM DOMESTIC VIOLENCE AND ITS EFFECTS! The best revenge is to live and liberate oneself, and liberate others by living well.