Privacy and technology today
May 8, 2006 | 12:00am
Among the e-mails I received regarding my article last week was one from Dr. Saturnino V. Llamado who lives in Seattle. Apart from saying that he was glad that someone had written on "hyperlinking and deep-linking," the latter being an everyday problem in the US, he said that it was "unfortunate that you devoted just one paragraph on privacy and the Internet, which may be a big problem in the Philippines in the near future." That’s one reason why I am tackling it today.
As early as 1890 in the Harvard Law Review, a treatise came out written by Louis Brandeis and Samuel Warren, famous jurists, whose names should be familiar to law students and lawyers alike, who have come across these names in the various judicial references and legal textbooks through the years, as well as in the adjudications of the US Federal Supreme Court and the commentaries thereon. Their treatise entitled, "The Right to Privacy" is, by and large, credited as one of the earliest recognitions of the right to privacy in the US. What makes this memorable is the fact that the authors were concerned, as early as then, about how "new technology affects privacy."
Did they, with their powerful minds, see technology as it exists today? Could they foresee the natural conflict existing now between an open system like the Internet on the one hand, and privacy of the natural and corporate individual on the other? In past articles, I have described the computer as "completely honest." That is part of the "inhumanity" of the worldwide machine that is the computer. And the openness of the Internet is a global given.
Art. III Sec. 3(1) of the Philippine Constitution provides that, "The privacy of communication and correspondence shall be inviolable except upon lawful order of the court or when public safety and order requires as prescribed by law." The use of the word "inviolable" makes it a strong provision, but the qualifying phrases make it subject to certain limitations which really have to do with the public interest.
Under section 2 of the same article, the use of the word "inviolable" is again present: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatsoever 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 and things to be seized."
You certainly cannot go any more particular than that. The qualifiers are so specifically worded, that every violation of this right cannot but be obviously culpable and dripping with malice and bad faith as well. The Supreme Court decision rendered just a few days ago on the third of May, denouncing as unconstitutional the raid inflicted on the premises of a media corporation, that the Daily Tribune is, could not have gone any other way. I must say, I was really shocked when this raid and the warrantless arrests of Randy David and Ronal Llamas happened recently.
As US lawyers may be quick to point out, the US constitution does not include the word "privacy," although, through the years, a succession of court cases have made it crystal clear that every inhabitant in the USA is entitled fundamentally to a substantial degree of privacy, including those corporate enterprises that abound in the land of opportunity, the USA. Even though a specific right to privacy is not mentioned in the US Constitution, let me point out that the US Supreme Court has interpreted the Constitution’s Bill of Rights as a guarantee of certain areas or zones of privacy. Many state constitutions explicitly define the right to privacy. One such law is their Electronic Communications Privacy Act, which was specifically designed to safeguard "any transfer of… signals… transmitted… by the aid of wire…", which covers most Internet communications. In the Philippines, we have the Philippine E-Commerce Act, and, of course, existing penal and corporate legislations.
The fact that the Harvard Law Review came out with the Brandeis/Warren treatise as early as 1890 on the right of privacy in relation to technological advances towards the formation of what is now called the worldwide web highlights the fact that the global corporate world with e-commerce posing problems with increasing frequency cannot wait for these issues of international concern to be addressed by every jurisdiction. It is here and now. Justices Brandeis and Warren, if they were still present today, sitting beside their respective computers, would be saying: "We told you so."
There is indeed every reason to be concerned, if not alarmed, because the global corporate world has become, today, a borderless stage.
Technology has come a long way since the 1890s, but we’re still struggling with the right to privacy. Brandeis and Warren had written that, "The existing law affords a principle which may be invoked to protect the privacy of the individual from invasions either by the too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds." As is evident, today’s "modern device," the Internet has created a new host of legal issues relating to privacy.
In 1994, at a high level telecom meeting in Washington DC, I remember that one of the sub-issues of mere concern, not of any great urgency, to the conference delegates from the public and private sectors in telecommunications, was the developing conflict between the right of individual and corporate privacy and the then recently born miracle baby that was the Internet. Already developing was the need in corporate practice of developing, both for individuals and corporations, their own so-called "website privacy policy." It was rather difficult for me to understand this in 1994 but so naturally easy for me to comprehend now, a little over 10 years later. (For the benefit of the others who sent me e-mails on my previous article, this subject I will discuss in ensuing articles.)
Suffice it to say right now that this issue boils down to this: What type of information may a company collect about individuals and enterprises on-line, and what may the company do with that information? Today, it has assumed far greater significance due to an active global e-commerce world.
Personally identifiable information is highly valued by marketers and business practitioners. These may be the following: name, address, date of birth, occupation, income, references, etc., sometimes even parts of one’s humanity like religious affiliations; for corporate entities, the corporate equivalents when applicable. These data enable the business practitioners to reach highly targeted audiences. However, not all information that a company collects on-line is directly submitted by a user. For instance, any well-run e-commerce site should keep a record of all those items ordered by a customer, and there are those that even keep a listing of those items viewed but not ordered by a customer through what is now called a "cookie-identifier."
While some users in global e-commerce may find this efficient and useful, others may find it invasive and intruding. Regardless of what users may think of this, no US law directly forbids it, and our legislators have not even thought about legislating on this particularly. Perhaps, they’ve never even heard of the issue. Furthermore, because we have quite a number of ISPs (Internet service providers) in our country, bear in mind that current laws throughout the world telecommunity, which includes the Philippines, do not sufficiently protect the privacy of information in the possession of an ISP.
Globally, the entire issue of Internet privacy remains to be resolved. Francis La Tupie, a French-American authority at the time I met him, on satellite communications from the US private sector, and who co-chaired the sub-committee at the 1994 conference, said something to this effect then, which remains true today about 12 years later. According to him, a person or a business enterprise may remain "secluded" from intrusion, but if a person or corporation is aggrieved by intrusion on seclusion, they may be entitled to relief if they had a "reasonable expectation of privacy" in the matter intruded upon, and if the intrusion would be "highly offensive" to the person or entity.
In an Asian periodical I read some time ago, I came across a line which I still remember. It goes something like this: the computer is a fast idiot, it has no imagination… it cannot originate action… it remains right now a tool of man… let us not be shocked out of our wits by what a decade can bring.
As early as 1890 in the Harvard Law Review, a treatise came out written by Louis Brandeis and Samuel Warren, famous jurists, whose names should be familiar to law students and lawyers alike, who have come across these names in the various judicial references and legal textbooks through the years, as well as in the adjudications of the US Federal Supreme Court and the commentaries thereon. Their treatise entitled, "The Right to Privacy" is, by and large, credited as one of the earliest recognitions of the right to privacy in the US. What makes this memorable is the fact that the authors were concerned, as early as then, about how "new technology affects privacy."
Did they, with their powerful minds, see technology as it exists today? Could they foresee the natural conflict existing now between an open system like the Internet on the one hand, and privacy of the natural and corporate individual on the other? In past articles, I have described the computer as "completely honest." That is part of the "inhumanity" of the worldwide machine that is the computer. And the openness of the Internet is a global given.
Art. III Sec. 3(1) of the Philippine Constitution provides that, "The privacy of communication and correspondence shall be inviolable except upon lawful order of the court or when public safety and order requires as prescribed by law." The use of the word "inviolable" makes it a strong provision, but the qualifying phrases make it subject to certain limitations which really have to do with the public interest.
Under section 2 of the same article, the use of the word "inviolable" is again present: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatsoever 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 and things to be seized."
You certainly cannot go any more particular than that. The qualifiers are so specifically worded, that every violation of this right cannot but be obviously culpable and dripping with malice and bad faith as well. The Supreme Court decision rendered just a few days ago on the third of May, denouncing as unconstitutional the raid inflicted on the premises of a media corporation, that the Daily Tribune is, could not have gone any other way. I must say, I was really shocked when this raid and the warrantless arrests of Randy David and Ronal Llamas happened recently.
As US lawyers may be quick to point out, the US constitution does not include the word "privacy," although, through the years, a succession of court cases have made it crystal clear that every inhabitant in the USA is entitled fundamentally to a substantial degree of privacy, including those corporate enterprises that abound in the land of opportunity, the USA. Even though a specific right to privacy is not mentioned in the US Constitution, let me point out that the US Supreme Court has interpreted the Constitution’s Bill of Rights as a guarantee of certain areas or zones of privacy. Many state constitutions explicitly define the right to privacy. One such law is their Electronic Communications Privacy Act, which was specifically designed to safeguard "any transfer of… signals… transmitted… by the aid of wire…", which covers most Internet communications. In the Philippines, we have the Philippine E-Commerce Act, and, of course, existing penal and corporate legislations.
The fact that the Harvard Law Review came out with the Brandeis/Warren treatise as early as 1890 on the right of privacy in relation to technological advances towards the formation of what is now called the worldwide web highlights the fact that the global corporate world with e-commerce posing problems with increasing frequency cannot wait for these issues of international concern to be addressed by every jurisdiction. It is here and now. Justices Brandeis and Warren, if they were still present today, sitting beside their respective computers, would be saying: "We told you so."
There is indeed every reason to be concerned, if not alarmed, because the global corporate world has become, today, a borderless stage.
Technology has come a long way since the 1890s, but we’re still struggling with the right to privacy. Brandeis and Warren had written that, "The existing law affords a principle which may be invoked to protect the privacy of the individual from invasions either by the too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds." As is evident, today’s "modern device," the Internet has created a new host of legal issues relating to privacy.
In 1994, at a high level telecom meeting in Washington DC, I remember that one of the sub-issues of mere concern, not of any great urgency, to the conference delegates from the public and private sectors in telecommunications, was the developing conflict between the right of individual and corporate privacy and the then recently born miracle baby that was the Internet. Already developing was the need in corporate practice of developing, both for individuals and corporations, their own so-called "website privacy policy." It was rather difficult for me to understand this in 1994 but so naturally easy for me to comprehend now, a little over 10 years later. (For the benefit of the others who sent me e-mails on my previous article, this subject I will discuss in ensuing articles.)
Suffice it to say right now that this issue boils down to this: What type of information may a company collect about individuals and enterprises on-line, and what may the company do with that information? Today, it has assumed far greater significance due to an active global e-commerce world.
Personally identifiable information is highly valued by marketers and business practitioners. These may be the following: name, address, date of birth, occupation, income, references, etc., sometimes even parts of one’s humanity like religious affiliations; for corporate entities, the corporate equivalents when applicable. These data enable the business practitioners to reach highly targeted audiences. However, not all information that a company collects on-line is directly submitted by a user. For instance, any well-run e-commerce site should keep a record of all those items ordered by a customer, and there are those that even keep a listing of those items viewed but not ordered by a customer through what is now called a "cookie-identifier."
While some users in global e-commerce may find this efficient and useful, others may find it invasive and intruding. Regardless of what users may think of this, no US law directly forbids it, and our legislators have not even thought about legislating on this particularly. Perhaps, they’ve never even heard of the issue. Furthermore, because we have quite a number of ISPs (Internet service providers) in our country, bear in mind that current laws throughout the world telecommunity, which includes the Philippines, do not sufficiently protect the privacy of information in the possession of an ISP.
Globally, the entire issue of Internet privacy remains to be resolved. Francis La Tupie, a French-American authority at the time I met him, on satellite communications from the US private sector, and who co-chaired the sub-committee at the 1994 conference, said something to this effect then, which remains true today about 12 years later. According to him, a person or a business enterprise may remain "secluded" from intrusion, but if a person or corporation is aggrieved by intrusion on seclusion, they may be entitled to relief if they had a "reasonable expectation of privacy" in the matter intruded upon, and if the intrusion would be "highly offensive" to the person or entity.
In an Asian periodical I read some time ago, I came across a line which I still remember. It goes something like this: the computer is a fast idiot, it has no imagination… it cannot originate action… it remains right now a tool of man… let us not be shocked out of our wits by what a decade can bring.
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Thanks for your e-mails sent to jtl@pldtdsl.net.
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