The dizzying pace of technological developments, particularly in software and machines that could capture or be embedded with sensors that can record and analyze human information, or data that could be collected from human subjects without any apparent intrusion or awareness of their subjects, is an enormous legal challenge for privacy and human rights activists, as well as for lawyers who have to contend with various sources of electronic data and their presentation in judicial or quasi-judicial bodies. Dr. Atty. Noel G. Ramiscal brought this to the fore in his several Mandatory Continuing Legal Education (MCLE) lectures for different chapters of the Integrated Bar of the Philippines which included the Parañaque, Pasay, Las Piñas and Muntinlupa, the Nueva Vizcaya and the Iloilo chapters.
IBP PPLM VP Atty. Paul Alcudia introducing Dr. Atty. Noel G. Ramiscal, September 4, 2015
In the cyberage, the electronic data privacy right and the right against self-incrimination of a human being are two different rights that are interrelated due to the fact that they arise from a human source. The Philippines has a Data Privacy law (R.A. 10173) that was passed in 2012, but for more than three years now, this law has not been implemented through any Implementing Rules and Regulation. The National Privacy Commission the law created lies inutile under the Office of the Philippine President. Even if the law appropriated money for its establishment, it has yet to be operationalized. This has had a deleterious effect on industries that rely on data processing and data management, including the BPOs. What is more, there is no guidance coming from the Executive, Legislative and Judicial branches of the government as to the proper appreciation and handling of sensitive personal information that includes health information and other pieces of information, that are processed in multifarious electronic devices, which in the wrong hands could lead to the damage and injury of the person affected.
Dr. Atty. Noel G. Ramiscal’s MCLE Lectures for IBP PPLM
An instance of a potential evidentiary question would arise in considering whether or not certain pieces of data generated by, or culled from human beings, are testimonial in nature, and thus could be subject to objections based on the right against self-incrimination.
Consider pattern locks in mobile phones and other devices that rely on certain hand movements known only to the users, which are tied to algorithms that these devices recognize, which result in their operation. Could these be in the same category as passwords or decryption keys, which in several U.S. cases have been determined to be “products of the mind”, and thus give the arrested person the right to object to their production?
Many e-devices like tablets and PCs are equipped with facial recognition software. They are opened by the user exposing his/her face to the device. It could be argued that a person subject to an arrest warrant, and whose e-devices are subject to a search warrant cannot deny the police his/her face to open the e-devices which could expose his/her criminal activity, the argument being the face is not a testimonial piece of evidence. Like a thumbprint, it is a mere biometric lock that reveals nothing by way of a “testimony” or evidence that is not already known by the police.
However, what about technologies that scan not merely the face, but the data about the regions of the face’s temperature, eye blinks, heart rates, body movements, to spot deceptive or suspicious behaviour (most of which are beyond the observation capacity of the police), and based on these, provide law enforcement agents with cause to arrest a person? These “pre-crime” technologies are now utilized in airports and even in employment situations.
Some of the IBP PPLM lawyers who attended Dr. Ramiscal’s lectures, September 4, 2015
But probably the most exciting and horrifying technological developments (depending on how one looks at it) center on machines that could actually read and print the thoughts of a person’s mind. This might not be a far- fetched possibility given the advances made on functional magnetic resonance imaging technologies.
As of now, these interesting issues have not been resolved, nor even apparently discussed in the Philippine setting. It is thus the mission of Dr. Ramiscal in his lectures to bring these issues to the attention of the lawyers, who may in the future be able to help resolve the evidentiary and Constitutional rights quagmires these technologies bring. Dr. Ramiscal would like to thank the IBP National, and the IBP PPLM, IBP Nueva Vizcaya and IBP Iloilo and UP IAJ for this opportunity given to him. Especial thanks to Atty. Paul Alcudia, the noble and kind IBP PPLM VP, and one time classmate of Dr. Ramiscal in UP Law, and to all the beautiful and supportive lawyers of IBP PPLM!
Philippine Law Bytes: TheCyberLawyer Issues by Dr. Attorney Noel Guivani Ramiscal 