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!

Social Media Discovery in Cagayan De Oro (Copyright by Dr. Atty. Noel G. Ramiscal)

Dr. Atty. Noel G. Ramiscal’s second MCLE lecture for the IBP Misamis Oriental Chapter, Cagayan de Oro (CDO) last July 8, 2015 revolved on the discovery of social media evidence. There is a growing trend in different jurisdictions around the world that puts social media data as an important source of proof for or against a party in almost all types of litigation. It was the perfect accompaniment for his first lecture which tackled the basic and some complex principles of electronic discovery on other pieces of electronic evidence.

DR. ATTY. NOEL G. RAMISCAL CDO MCLE JULY82015

Dr. Ramiscal began by giving a definition of social media and some statistics that put no doubt on the crucial importance of the usage of social media networks in the everyday lives of netizens. He gave several examples of online social networks (OSNs) and focused on the primary issues that affect their users legally.

OSNs like Facebook delineate content that is public and private, but these delineations are not markedly observed when it comes to criminal prosecutions or civil proceedings where the relevant content in a user’s private profile can be the subject of discovery. “Privacy” as a battle cry of embattled producing parties has been consistently shouted down by courts in the U.S., U.K., Europe and recently, even in the Philippines. The general jurisprudential trend is to deny any unqualified reasonable expectation of privacy even in private postings where the privacy of these postings has been compromised by the actuations of the user, or their Facebook “friends”. Dr. Ramiscal showed to the CDO lawyers certain techniques of e-discovery that they can employ to get the possibly incriminating content that could actually help them win their case.

DR. ATTY. NOEL G. RAMISCAL CDO MCLE LECTURE JULY82015 SOCIAL MEDIA

Dr. Ramiscal then delved into evidentiary issues in the admissibility of social media evidence in court. He expostulated on the various objections that could be raised including authentication and hearsay issues and how to meet them.

Since social media data like all electronic data can be subjected to spoliation or destruction by the user, Dr. Ramiscal apprised the CDO lawyers of tactics they can use to prevent the spoliation of this type of evidence. He also explained the measures they can seek against parties who have actually destroyed these e-data and their counsels who may have actually advised them or contributed to the e-data’s destruction.

DR. ATTY. NOEL G. RAMISCAL CDO MCLE JULY82015 CDO SMILING LAWYERS

DR. ATTY. NOEL G. RAMISCAL CDO MCLE JULY82015 LAWYERS

To round off his discussion, Dr. Ramiscal relayed to the CDO lawyers some legal tips in avoiding being placed in legal and ethical hot waters when it comes to approaching or “friending” any party related to any case they are involved in. Prudence, propriety and common sense are basically the rules of the day.

DR. ATTY. NOEL G. RAMISCAL CDO MCLE LECTURE JULY 8 2015 WITH GORGEOUS CDO LAWYERS

To the attentive and most appreciative CDO lawyers who stayed through the duration of his second lecture, Dr. Ramiscal gives them his highest and warmest regards!

DR. ATTY. NOEL G. RAMISCAL CDO MCLE LECTURE JULY 8 2015 WITH ATTY. REY RAAGAS, IBP CHAP. PRES.

Thank you to the IBP Misamis Oriental Chapter, the IBP National, and Ms. Arguson, for inviting him to their truly grand and “bonggacious” event! Special thanks to Attys. Raagas, Nuñez, Cuaresma, and Muchisimas Gracias to Atty. Charmine Caminao for her kind support and beautiful and brilliant presence!

A PHILIPPINE LAWYER’S REACTION TO A 2015 E-DISCOVERY STUDY IN ASIA AND WHY THE PHILIPPINES HAS TO PLAY CATCH UP (Copyright by Dr. Atty. Noel G. Ramiscal)

Asian Business Legal Magazine and FTI Consulting early this year published a study on the subject of electronic discovery of evidence which they conducted as a result of their 2013 and 2014 surveys of a handful of lawyers and law firms in Asia.

The study purportedly covered not merely the legal, but the technical and cultural facets of e-discovery. It revealed that only “(s)ixty-five individuals from corporations and law firms completed an extensive online survey, while five e-discovery experts participated in phone interviews.” There was no data revealed as to which particular Asian countries these respondents came from. It was also stated that the “(r) espondents have collected data from 15 different Asian countries (plus the United States, Europe, Latin America and Africa). It may be worth noting that this list is not topped by one of the two Common Law countries (Hong Kong and Singapore), but China, with 60% of respondents having collected there.” As far as the Philippines goes, only 7% of the 70 respondents stated that they collected data from Philippine sources.

On its face, the number of respondents to the study might be deemed too small as to be truly representative of the realities, perspectives and experiences that lawyers and law firms in Asia undergo as the e-discovery processes are set in motion. Be that as it may, Dr. Atty. Noel G. Ramiscal’s reaction would focus on several important issues arising from the study, with respect to their particular import to the Philippines.

THE COSTS OF E-DISCOVERY

The study delved on the huge amount of electronic data that are involved per e-discovery project which pertains to a given case. For example, “(g)iven the huge increase in email correspondence, it is not unusual for each of the parties to be required to apply data storage and key word searches to more than 200,000 separate pieces of correspondence……Indeed, a recent Bingham Tokyo case had over 500,000 separate pieces of correspondence.” The study asked the respondents their estimates of the monetary value of e-discovery for multinational companies. 29% of the respondents declared they “do not know”, while some 2 to 3 % estimated the costs to be $2.5 Million – $5 Million, and the rest laid their estimates between less than $50,000 to $1 Million.

Dr. Ramiscal gave his first lecture on the costs of electronic discovery within the Philippine context way back in May 16, 2007 for the Financial Executives Institute of the Philippines (FINEX).

Dr. Atty. Noel G. Ramiscal receiving a plaque of appreciation from the FINEX

In his lecture entitled “Assessing the Costs and Legal Ramifications of E-Data to Your Business or Corporation” he gave specific examples of how much the discovery production costs of pertinent e-data in back-up tapes alone had set some parties back in the United States. For instance, in 2002, in Rowe Entertainment, Inc. v. William Morris Agency, Inc., the costs of e-data recovery was pegged at $9.75 million, while in Murphy Oil USA, Inc. v. Fluor Daniel, Inc., it was set at $6.2 million. These cases did not include the costs for the time of the lawyers and paralegals reviewing the data to determine which is relevant. He then gave an estimate of how much it would take to recover e-data covering thousands of emails spanning several years, using an e-discovery software with the help of an IT specialist at 2007 Philippine prices and context, for a medium sized non-multinational company.

Dr. Atty. Noel G. Ramiscal lecturing before the FINEX officers and members

He placed the conservative estimate of Php3 million, excluding attorney’s fees for the review of the documents for privilege or confidentiality and relevance.

The study highlighted the fact that almost one third of the respondents did not know how to estimate the costs, without giving any reason why. In his FINEX lecture, and his succeeding Mandatory Continuing Legal Education (MCLE) lectures on this matter, Dr. Ramiscal delineated some of the complicated processes involved in the electronic discovery of e-data (e.g., litigation holds, preservation orders, etc.), made all the more uncertain because of the non-existent rules, then and now, from the Philippine Supreme Court that deal precisely with the legal and proper way of e-discovery. Such lack of proper rules and awareness of e-discovery techniques in the Philippines, that the Supreme Court has the duty to lay down, can certainly contribute to the lack of knowledge of Philippine lawyers as to the costs of e-discovery.

THE NON-FINANCIAL COSTS OF NOT COMPLYING WITH E-DISCOVERY

While the study stressed the fact that the scope of e-discovery is quite broad due to the prevalence of electronic evidence, what it did not dwell on is the non-financial consequences of failing to observe e-discovery procedures. This is an important lacuna in the study.

Aside from the monetary costs, Dr. Ramiscal in his FINEX Lecture and subsequent MCLE lectures had always emphasized the costs of losing one’s business and reputation arising from not observing e-discovery procedures like intentionally destroying electronic evidence pending an imminent litigation or violating an already established preservation order.

Dr. Atty. Noel G. Ramiscal during the Question & Answer portion of his FINEX lecture

A very clear example that he usually gives are the e-discovery infractions committed by the Arthur Andersen accounting firm with their Enron account which led to the dissolution of the firm. These are matters that many law firms, corporations, and courts in the Philippines may not even realize at this stage.

WHO BEARS THE COSTS OF E-DISCOVERY?

The study noted that a lot of e-discovery requests come from government regulators. This meant that the company under regulation is bound to comply, and implied that it will bear the costs of e-discovery.

But that is not the whole reality. When a contentious case arises before the court, for example an intellectual property case involving patents, it is expected that both parties will resort to e-discovery process. In some cases the extent of the requests may be unreasonably broad which, if followed, can lead to unnecessarily heavy financial costs. The American courts have established some sophisticated doctrines and guidelines to follow in cases like this, recognizing the fact that making one party bear the costs of e-discovery would in many cases be unfair. This is another matter that Dr. Ramiscal has continually explored in his lectures for the MCLE seminars he has been invited to by the UP IAJ and the Integrated Bar of the Philippines tackling electronic evidence and electronic discovery.

The study could have been more relevant had it tackled this very particular nitty gritty aspect of e-discovery that involves both clients and their lawyers.

TRANSBORDER DATA FLOW

Finally, the study underscored the challenges concerning privacy and transborder data flows to and from jurisdictions whose privacy laws may conflict with one another. This is a very important matter, and one that is demonstrably illustrated as far as the Philippines goes.

The Philippine Legislature has passed Republic Act 10173, entitled “AN ACT PROTECTING INDIVIDUAL PERSONAL INFORMATION IN INFORMATION AND COMMUNICATIONS SYSTEMS IN THE GOVERNMENT AND THE PRIVATE SECTOR, CREATING FOR THIS PURPOSE A NATIONAL PRIVACY COMMISSION, AND FOR OTHER PURPOSES” in 2012. Almost three years have passed but the Implementing Rules and Regulations (IRR) of this law had not been passed. The National Privacy Commission has not yet been operationalized. Meanwhile, issues confronting the data rights of Philippine citizens have arisen without any specific government directive or direction addressing these issues. In the same vein, Republic Act 10175, “AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES” passed in 2012 also has no IRR. This law could complement or intersect with some of the provisions of Republic Act 10173. Under the Administrative law and jurisprudence of the Philippines, without the proper publication of the IRRs of these laws in the Official Gazette or newspaper of general circulation, and proper deposit of their copies with the Office of the National Administrative Register, these laws are not effective against any entity.

CONCLUSION

The Asian Business Legal Magazine and FTI study of e-discovery’s value for the Philippines lies in being an eye opener of some of the important issues concerning e-discovery which the key players in the Philippine government, including the Philippine Supreme Court, and the pertinent executive agencies must deal with. With the electronic initiatives of the Philippine Supreme Court under Chief Justice Sereno (who is a champion of IT-enabled courts), the matter concerning e-discovery of e-data deserves to be duly and timely addressed, especially since the establishment of Philippine Cybercrime courts under Republic Act 10175 had not yet been actualized due to the non-passage of the law’s IRR.

Cite: Dr. Atty. Noel G. Ramiscal, A PHILIPPINE LAWYER’S REACTION TO A 2015 E-DISCOVERY STUDY IN ASIA AND WHY THE PHILIPPINES HAS TO PLAY CATCH UP, (URL), (date of access)

Virtual Lawyering in the Philippines

For much of 2012 and 2013, Dr. Ramiscal had lectured and engaged in dialogues with lawyers, in the government and private sector with respect to the practice of law online.

Dr. Atty. Noel G. Ramiscal MCLE lecture circa 2012 UPLC

Dr. Atty. Noel G. Ramiscal MCLE Lecture for PNP Lawyers

Dr. Atty. Noel G. Ramiscal in his MCLE Lecture on Online Legal Practice for SEC Lawyers

Dr. Atty. Noel G. Ramiscal at the AIM for his MCLE lecture on Virtual Lawyering for the Romulo Mabanta lawyers

Dr. Atty. Noel G. Ramiscal’s MCLE Lecture on Virtual lawyering for the Siguion, Reyna, Montecillo and Ongsiaco law firm lawyers

The passage of the Cybercrime Prevention Act of 2012, and the lifting of the TRO by the Philippine Supreme Court over this act (in its decision dated February 21, 2014), together with the same court’s declaration of the unconstitutionality of some of its provisions, have not really settled many of the issues that Dr. Ramiscal had extensively discussed in his Mandatory Continuing Legal Education (MCLE) lectures.

More specifically, these are the issues concerning the regulation of virtual lawyering, cyber advertising and cyber auctioning of legal services, jurisdictional issues of cross border online legal services, cloud computing legal issues, online legal process outsourcing, and of course, the variegated complexities of ethical lawyering in cyberspace. In his MCLE lectures, a lot of lawyers had expressed publicly (during the open forum) and privately to Dr. Ramiscal, their challenges at applying legal concepts meant for the physical world to the online world.

Dr. Atty. Noel G. Ramiscal after his MCLE Lecture for the Philippine Bar Association on Virtual Lawyering

Since the recent decision on the Cybercrime Prevention Act did not address nor give any guidelines on virtual lawyering in the Philippines, there is a necessity for private lawyer associations like the Integrated Bar of the Philippines and the Philippine Bar Association, legal experts, jurists, the Philippine Supreme Court and concerned legislators to address the growing legal and ethical concerns that the online practice of law can engender. The Code of Professional Ethics for Lawyers, and the Code of Judicial Conduct, as well as the Rules on Electronic Evidence and pertinent rules in the Rules of Court need a thorough review. A good compilation and annotation of all the Philippine Supreme Court decisions concerning the internet and its innovations that might have some bearing on online legal practice is also a must.

In the meantime, Philippine lawyers who must engage in some form of online practice must be guided by their common sense in their online transactions. The simple rule is, if you cannot do it physically, do not do it digitally. And lastly, do not underestimate the efficacy and power of disclaimers.