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The Sovereign Individual: The Writ of Habeas Data and the Right to Informational Privacy Flip Bi M. Gozo J ™ ‘Theoben Jrdan C. Onsa* 1. Ivrropuerion .. a UL, Two Lawyers Watre « Rictt IIL, Constrruriowatszmc INorembUALISNe IV Frenne Neo FROM THE MATRIX wn AL Computers, Data Strgs, and Information Accumlation ‘By, The Right to Informational Priaey V. Diszosnin Punpane Privacy JURISPRUDENCE, snee $7 Vi. Tole Wart oF Haséas Dara. 658 VILCONCLUSIOR nnn Fog LLB. Univey of the Philippines Cogs of Law, 00 BS, Ateneo de nila Unity. Te stor comely» Cou Atorey of he Oi of he Chit eof the Saree Cor ofthe hippies s+ "6; MA. cand, Univesity ofthe Pippin ‘06 .D., Ateneo, de Mani School of Law Bh, Uiveity of he Phipine. The stor i coment 3 Cour Atomey ofthe Oe of the Chit Jusce ofthe Supreme Court of the Pippin, He at Meter of the Bod of Edits (2003200) and the Eneeutve Commies (205-200) ofthe Ato Lt Jum The shoe’ previo sorts plished in the Jamal lode The Fale Computztin of he Naina Enel nd the Nlfxion o he Auonged Elen Cnr, 49 ATENEO LJ. 338 (aos Coil Kitry andor he Cine Awe Cau, 4p ATENEO L). 565 {son Tans ds Cm: Conti Rvvig Deion of cet Ta, So ATENEO L] 311 Gos) The NewalAppac in Reig Dat in Rl Sapo La, $0 ATEN L728 (088) Both of he tor seve ining lye to the Supreme Court Commitee on the Revison of Rule Qiy append. This Aide shoei in no. way be conte binding onthe Commitee athe opinions consid herin re pure the autho exer arekenss re me. The sation would ike 0 TRsr Chit justice eyo $ Puno for he mentonip The avin would so like to een gatas to Mme Jce Alin Austr Matec, Co-Chair ofthe Sopene Court Commitee on Revson of Res for pong the pape ented The Wht of aes DaExoring the Rig we Imation end Piva soot by the auton tthe Commie for consideration a2 Popored Ree Te autho 2 Sho gat for he roeh and eng sistance proved by Mi. Kevin Lever ze Ms Joy Supa Tan, Me Derma Joph B, Main and Ms. Mars Coie Na othe As La oa Cite as $2 Arew0 LJ. 6482007). 2007] THE SOVEREIGN INDIVIDUAL 649 “Cver one's mind and over one's boy the individuals sovereign’ “John Stuart Mil, On Liberty L INTRODUCTION In his book entitled On Libery,* John Stuart Mill, founder of Western Jndvidval beri, lee 2 rather unchallenged rhetorical argument for the protection ofthe rights ofthe individual pecially the ight to privacy. Mill argued that over one’s penon — pariculy hie mind and hie body, the individual e sovereign. It was an argument of contol and atthe same time, ts argument of limitation, Control i recognized in the posesion of the individual and limitation is recognized at imposible gaint everyone ce ‘Thus, one may choose how one decides to live. In the words ofa fous “American jurist, the right to privacy isthe inalienable right of an individual “to be let alone.”? It has been said that the “right to be let alone is the fount cof all freedom; and privacy depends upon the scope and function of individual feedom in socey.”* Cereinly, what that "icedom cover: is neither found in an easy enumeration naz can it be derived ffom an ea ‘consensus. Bt largely, Seedom from restraints shown inthe recognition of the divide beoween the governments hold over the individuals sovereign space and that held by the public sphere through govermenaiy.+ 1 JORN STUART MILL, ON LIBERTY (1859) 2. THOMAS M. COOLEY, CooLEY ON TORTS 29 (2d ed. 168) ced in Samvel ‘Warren & Louis Brandes, The Right © Privy, 4 HARV. L. REV. 193, 195 (1890) 4. AIAN F, WESTIN, PRIVACY AND FREEDOM vi (1970) 4+ Michel Foucault ofen defines governmentalty 28 the “art of government” i 3 wide sens, that iy with an idea of “government” that i not limited to sate politics alone, that includes a wide enge of contol techniques, and that applies to a wide varity of objec, ffom ones control af the sel to the "biopolies! contol of populations. Inthe work of Foucault, this notion is indeed linked gp other concepts such 2s “biopolities” and power knowledge. “Governmental arplies toa variety of hitorieal periods and to differen specific power regimes. However, is offen wsed (by other scholars and by Foucault himself as well) reference to “neoliberal governmental,” in other words, to 2 type of sgovemnmentlity that characterizes advanced liberal democracies, In this cate, the ‘otion of governmental refers to societies where power i de-centered and its members play an active role in their own self-government, at posted, for ‘ample, in neoibersm. Because of its active role individuals need 10 be egulsted ftom “inside.” & particule form of governmental i characterized by a cerain form of knowledge (“avoir” in French) Inthe cate of neabera governmentalcy (2 kind of governmenslity based on the predominance of ‘market mechanisms and of the restiction of the action of the sate), the Jmowledge produced allows che construction of suto-egubted or aito- comecting selves. See, MICHEL FOUCAULT, ETHICS SUBJECTIVITY AND 650 [ATENEO LAW JOURNAL Ivor. 52:48 tn every society, an invidualhas the right olive with other beings ( socal animal, inthe words of Plato), and yet remain the sovereign of one’s town dominion: one's private domain, This isthe foundation ofthe right ¢o privacy — the right of the individual to insist upon his or her individualiey Ind 10 contol information, the diseminaion of which would render his sovereignty inate. Lord Acton defined feedom as an “assurance that every than shall be protected in doing what he balieves his duty against the induence of authority and majorities, custom and opinion.”* Lord Acton sucsed an important character offeedom — that when applied to privacy, it's much endangered by the uncontrolled acivity of individual persons 3s by the might of the Leviathan or the allseeing gaze of the governmental Panopigon.? In egal history, the privacy ofan individual takes its roots fom common lbw which recognized 2 man’s house as his caste, impregnable, even to the monarch and it officers engaged in the execution of its commands? Legal History has recognized the evolution of the right co privacy as pat of human freedom and one of human rights? In this Article, che authon argue that the right to control the information over one's individual person is covered by the right co privacy in Philippine consitutional jurisprudence. This is supported by an account of the development of Philippine legal literture on che constitutional right to pivacy, is dervative ight and clasicaions, including informational Privacy, This Article aso examines the Supreme Court's resolution adopting "TRUTH (Pal Rabinow ed, 1097); MICHEL FOUCAULT, Covromentaity in ‘THE FOUCAULT EMIECT: STUDIES ®W GOVERNMENTALITY 87-104 (Graham Burchell etl. e& & Rosi Bradot trans, 1991). Se abo, MicuEL FOUCAULT, Teale of the Sof, ix TECHNOLOGIES OF THE SELF A SEMINAR. WITH (Micitet FOUCAULT 16-49 Huck Guuman, etal ed, 1988). 4 Loed John Emerich Edward Dalberg Acton, Address delivered to the Members of the Bridgnorth Insite: The History of Freedom in Antiquity (Feb. 26, 7 6. THOMAS HOBBES, THE LEVIATHAN (1651), 17. The Panopsicon is» ype of prison building designed by Engi philosopher Jeremy Bentham in 1785. The concept ofthe design ist allow an observer fo ‘bsceve opscon all (pan-) prizoner without the prisoners being able to tll whether they are being watched, thereby conveying what one architect his Called the “sentiment of an invisible ommicience.” Bentham himself described the Panopticon ss "a new mode of abtining power of mind over mind, in a igeaniy hitherto without example.” JeREMY BENTHAM, Ponption, i THE PaNOPHICON WRITINGS 25-95 (Miran Bozovic ed, 1998) 8. West supe note 3, 387-40 9. Seegenedly, ALAN, WESTIN, PRIVACY AND FREEDOM (1964). 2007] ‘THE SOVEREIGN INDIVIDUAL 6st the writ of habeas data which provides for 2 judicial remedy recognizing che sight of informational privacy IL TWO LAWYERS WRITING A RUGHT ‘The article by Samuel Warren and Louis Brandeis (bter Justice Brandeis) entitled The Right to Privacy” forever changed legal literature and subsequent Jurisprudence when the authors popularized the right to privacy 3 an independent legal right. With extreme foresight ahead of ther time, Waren and Brandeis declared in 1890 that: {T]he individual shall have fill protection in person and in propery is 2 Principle aol asthe common law but i has been found necessary ffom Sime eo time to define anew the exact nature and extent of sch protection. Political, social, and economic changes ental che recognicion cf new nights, and the common lw, in eteral youth, grows to meet the new demands Of society. Thus, in very early times, the law gave 2 remedy only for physi interference with ife and propery, for tespases vf & ami. Then the “right to life” served only to protect the subject fom battery i is various forms; liberty meant freedom fom actual resrunt and the right 9 property accured tothe individual his ands and bis cate ‘The intense inteleewal and emotional lie, and che heghtening of sensations which came with the advance of civilization, made it lear to ren that only pot of the pain, pleasure, and pros: of if ay im physisl things. Thoughts, emotions, nd senestions demanded legal recognition, and the beautfl expacity fr growth which characterizes the common lw fnabled the judges to afford the requisite protection, without the incerpocon ofthe legate, Recent inventions and busines methods ell attention to te next stp ‘which must be taken forthe protection ofthe peron, and fr securing £9 the individual what Judge Cooley calle the igh "to be let alone." Warren and Brandeis opened the portals for a more systematic study of the disinctive principles upon which the right to privacy is based. Recent developments, however, have shown that sad right covers broader aspect of human activity of an individval, family, home, and reputaton. Indeed, fo less than the Universal Declaration of Human Rights, in article t2, sates that: “No one shall be subjected to arbitrary intexference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation, Everyone has the right to the protection of the lew against such interference or atacks.” ro, Warren & Brandes capa note 3, 1, Warren & Brandes, supra nove 2,2 194-96. 12, Univeral Declaction of Human Right (UDHRJ, GA. Res. 217, UN. GAOR, ged ses, 15 plen. meg, U.N. Dec. A/S (Dee 10,1948. 632 ATENEO LAW JOURNAL Ivor, 52:648 Comics ich at France explly protct_ privacy inthe onston.® On the other hand, the United Sates (US) Conigton dos ot epicy exe the rg to privacy, yee US. Supreme Cour has epeedly recognized sich aight in fs efor @ prseve the inden concol ever is esonal image, The Supreme Cot hs found torte US. Con conse ena tt mg nt to pitacy again government neon. Thi exrplid in Gel Cameco" where the US, Supreme Cou recognized that pvacy Win te lea penumia of the Bil of Rights pascal in the Pi, ‘Thi Four, Pi and Ninth Amendments In Griswold, the Supreme Court explained that even though a right to privacy is not specifically articulated in che Constitution, “[the) right to privacy [it] older than the Bill of Rights — older than our political patties." The Court established that the right to privacy is famdamental right. As Profesicy Coquia noted: ‘The right co privacy has boon expreied seve thourands of yeas ago with the maxim that “A man's howe is his cae." The expectation of privacy within ege's home is found in the Talmud, the Jewish civil and religious liw and the Code of Hamutrabi, These principles eventual have been incorporated ia the Bill of Rights in sevenl stte constitutions. The Philippines in ts Malolos Constitution adopted in 1899 sates tat “no enon thall enter the domicile of a Fikpine oF orcgner residing in dhe Philippine Idande without his consent, except in urgent cates of fire, food, certhquake, or other natu danger of unlawful aggression proceeding from ‘within, oF in order to asst 2 person caling for help.” ‘The Amesicons in thei Gght for independence"ftom Eggland quesioned the quartering of sumed troops in dei homes !7 Other countries without constitutional provisions on privacy have laws protecting privacy, such as the United Kingdom's Data Protection Act 1998 for Australia's Privacy Act 1988. On the other hand, the European Union, through directives such as Directive 95/46," require: all member states to legislate to ensure that citizens have aright to privacy 15 Se French Dedlaton onthe Rights of Man (178) 14, Griwold v. Conneticut, 141. Bd. 2d 10 (1963) 15, Mat srets 16 It 516 1, Jorge R. Cogs, Annotation, The National CompucrzedIdevifaton Refocne Spiem as Vion ofthe Right 1 Privacy: A. Review of the Drndples and Jniprewe on Pivuy «© Human Rights, 93 SCRA 201, 305 (198) 18, Council Dicetive 95/46, 1995 OJ. (281) 2231 EO), 2007] ‘THE SOVEREIGN INDIVIDUAL 653 IL CONSTITUMONALIZING INDIVIDUALISM ‘The 1987 Philippine Constitution guarantees the privacy of correspondence and communication.*® The 1935 Constitution?® and the 1973 Constitation** ‘contained the same provisions. Some argued that the right to privacy is not inherent in Philippine legalese because it is not rooted in Philippine culture. However, if one should find the 1899 Constitution of Malolos as a legal document worth Considering, it contained provisions that protect the individual's right 1o privacy including the privacy of the person, fmily, home, correspondence, and even modesp communications such as telegraphs and telephones) Why these provisions were not carted to the 1935 Constitution is unclear Pethaps the reason for the noninclusion is the fact that the 1935, Constitution was a copy of the U.S. Constitution. But even with the use of safeguards in the U.S. Constitution, it should be kept in mind, 3¢ Justice Brandeis wrote in Olmstead v. United Staten that ¢ maker of our Constitution undertook to secure conditions favorable ‘0 the pursuit of happiness. They recognized the signee of man's spinal nature, of his feelings and of his inlet...» They conferced, a5 agiime the government, the right t0 be let alone — the mow comprehensive of rights and the right most valued by cved man, To protect that right, every unjustifiable otrason by the government upon the Privacy ofthe individoa, ehatever the means employed, maz be deemed a Violation ofthe Fourth Amendment. And the use, x evidence in acrid proceeding, of facts ascertained by such insrusion mun be deemed a ‘ioltion of the Fifth ‘Thus, the principle underlying the Fourth and Fifth Amendments is provection against invasion of the sanctites of « man's home and privacy of 19, 1987 PAIL, CONST. ar 1, § 3,41 ‘The privacy of communication and correrpondence shall be invicble {ef pn lawl order of he cour, or when ble wy or one fequtes otherwise x prescribed byw. 20. 1935 PHIL. CONST: at ll § 1, 9 5 (uperceded 197). 421, 1973 PeL. CONST. art IV, § 4,1 superceded 1987), 22, Dean Irene Cortes, Contitional eundations of Privacy, in EMERGING TRENDS IN LAW 4-5 (1983) (quoting the argument of Carmen Guerrero. Nakpil in Consensus of One, angsing that there # no work that can he tansiteated for “privacy” in the lotal vemacular because there is no such concept in the Phiappines) 23. 18op PHIL. CONST. ats 0, 12,13 oupeoeded 1935) 124, Olmstead v, United Stats, 277 US. 438 (1938). 25. 1d. 478-79 (Brandes, disenting)