REPUBLIC ACT NO. 10173,
AS KNOWN AS “DATA PRIVACY ACT OF 2012 “
INTRODUCTION:
This was begun when President Fidel Ramos issued
an Administrative Oder No. 308 known as
ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM ON December
12, l996.
There were many senators petitions on this
Administrative Order No 308 headed by the late Senator Blas F. Ople. The petitioner claims that Administrative
Order No 308 is not a mere administrative order, but a law and hence, beyond
the power of the President. He alleges
that Administrative Order 308 establishes a system of identification that is
all encompasses in scope, effects the life and liberty to privacy of every
Filipino citizen and foreign resident may particular violates their right to
privacy.
The petitioner ask for marked by
accomplished with care and persuasive, diligent in application by the Executive
branch of the government not to trespass on the
lawmaking domain of Congress The separation power of the Legislative to
make laws and the power of the Executive to execute laws will disturb their delicate balance of power and cannot be
allowed. Hence the exercise by one
branch of government, of power belonging
to another will be given a stricter scrutiny by the Court.
The Legislative and Executive power is
not demarcation. Legislative power is
“the authority, under the Constitution, to make laws, and to alter and repeal
them. The Constitution, as the will of
the people in their original, sovereign and unlimited capacity, has vested this
power in the Congress of the Philippines.
The grant of legislative power to
congress is broad, general and comprehensive.
The legislative body possesses plenary power for all purposes of civil
government. Any power deemed to be
legislative by usage and tradition, is necessarily possessed by Congress,
unless the Constitution has lodged it elsewhere. The legislative power embraces all subjects
and extends to matters of general concern or common interest.
The executive Department, the President as
the head and Chief Executive executes the laws, while the Congress is vested
with the power to enact laws. The executive
power is vested in the President. It is generally defines as the power to
enforce and administer the laws. It is
the power of carrying the laws into practical operation and enforcing their due
observation.
The President represents the government as
a whole and sees to it that all laws are enforced by the officials and
employees of his department. He has
control over the executive department, bureaus and offices. This means that has the authority to assume
directly the functions of the executive department, bureau and office, or
interfere with the discretion of its officials.
Corollary to the power of control, the President also has the duty of
supervising the enforcement of laws for the maintenance of general peace and
public order. The president, granted
administrative power over bureaus and offices under his control to enable him
to discharge his duties effectively.
Administrative power is concerned with the
work of applying policies and enforcing orders as determined by proper governmental
organs. It enables the President to fix
a uniform standard of administrative orders, rules and regulations.
Administrative Order No 308 involves a
subject that is not appropriate to covered by an administrative order. Under Sec. 3 of the Administrative Order is -
- - -Administrative Orders, -- Acts of the President which relate to particular
aspect of government operation in pursuance of his duties as administrative
head shall be promulgated in administrative orders.
An Administrative order in an ordinance
issued by the President which relates to specific aspects in the administrative
operation of government. It must be in
harmony with the law and should be for the sole purpose of implementing the law
and carrying out the legislative policy.
The Legislative reject the implementation of the Administrative Order
No. 308 under Administrative Code of 1987.
The Code is the general law and “incorporates in a unified document the
major structural, functional and procedural principles of governance.” And “embodies changes in administrative
structures and procedures designed by the people.
It cannot be simplistically argued
that Administrative Order No. 308 merely
implements the Administrative Code of 1987.
It establishes for the first time a National Computerized Identification
Reference System. Such a system requires
a delicate adjustment of various contending state3 policies—primacy of national
security, the extent of privacy interest against dossier-gathering by
government, the choice of policies. Mr
Mendoza dissent that the Administrative Order No. 308 involves the
all-important freedom of thought. As
said administrative order redefines the parameters of some basic rights of our
citizenry. The State as well as the line
that separates the administrative power of the President to make rules and
legislative power to Congress, it ought to be evident that it deals with a
subject that should be covered by law.
Administrative
Order No. 308 is not a law because it confers no right, imposes no duty,
affords no protection, and creates no office so it is not correct to
argue. Under Administrative Order No.
308, a citizen cannot transact business with the government agencies delivering
basic services to the people without the contemplated identification card. No citizen will refuse to get this
identification card for no one can avoid dealing with the government. It is thus clear as daylight that without the
ID, a citizen will have difficulty exercising his rights and enjoying his
privileges.
Dissenting
opinions unduly expand the limits of administrative legislation and
consequently erode the plenary power of Congress to make laws. This is contrary to the established approach defining the traditional limits of
administrative legislation. Regulations
are not supposed to be a substitute for general policy-making that Congress
enacts in the form of a public law.
Administrative Order No.308 need not be a
subject of a laws, still it cannot pass constitutional muster as an
administrative legislation because facially it violates the right to
privacy. The essence of privacy is the
right to be let alone.
“Specific guarantees in the Bill of Rights
have penumbras formed by emanations from these guarantees that help give them
life and substance. The right of privacy
as such is accorded recognition independently of its identification with
liberty; in itself, it is fully deserving of constitutional protection. In
contrast, a system of limited government safeguards a private sector, which
belongs to the individual, firmly distinguishing it from the public sector,
which state can control. Protection of
this private sector- - protection, in other words, of the dignity and integrity
of individual - - has become increasingly important as modern society has
developed.”
The right of privacy is r3ecognized and
enshrined in several provisions of our Constitution. It is expressly recognized in Section e (1)
of the Bill of Rights:
Section 3. (1) The privacy of communication
and correspondence shall be inviolable except upon lawful order of the court,
or when public safety or order requires otherwise as prescribed by laws.”
Right of privacy are protected in various
provision of the Bill of Rights:
Section 1. No person shall be deprived of
life, liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws.
Therefore, zone of privacy are likewise
recognized and protected in our laws.
The Civil Code provides that“ every person shall respect the dignity,
personality, privacy and peace of mind of his neighbors and other persons” and punishes as actionable torts several acts
by a person of meddling and prying into the privacy of another. It also holds a
public officer or employee or any , it is the burden of the government to shall
liable for the damages for any violation of the rights and liberties of another
person, and recognizes the privacy of letters and other private communications. The Revised Penal Code makes a crime the
violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to
dwelling. Invasion of privacy is an
offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank
Deposit Act and the Intellectual Property Code.
To cut short, off from the premise that
the right to privacy is a right
guaranteed by the Constitution, hence it is the burden of the government to
show that Administrative Order 308 is justified by some compelling state interest
and that it is narrowly drawn. A.O.No.
308 is predicated on two considerations:
(1) the need to provide our
citizens and foreigners with the facility to conveniently transact business
with the basic service and social security and other government instrumentalities and
(and) the need to reduce, if not totally eradicate, fraudulent transactions and
misrepresentations by persons seeking basic services. It is debatable whether
these interests are compelling enough to warrant the issuance of A.O. No.
308. But what is not arguable is the
broadness, the vagueness, the over breadth of A.O. 308, which implemented will
put our people’s right to privacy in clear and present danger.
The heart of A.O. No. 308 lies in its
Section 4 which provides for a Population Reference Number (PRN) as a “common
reference number to establish a linkage among concerned agencies” through the
use of “Biometrics Technology” and “computer application designs.” The use of biometrics and computers
technology in A.O.No. 308 does not assure the individual of an expectation of
privacy.
The right to privacy is one of the most threatened
rights of man living in mass society.
The threats emanate from various sources - - - governments, journalist,
employers, social scientists, and others.
In the case of bar, comes from
the executive branch of government which by issuing A.O. No. 308 pressures the
people to surrender their privacy by giving information about themselves on the
pretext that it will facilitate delivery of basic services.
The petition is granted and the
Administrative Order No. 308 entitled “ADOPTION OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM’ declared NULL AND VOID for being
UNCONSTITUTIONAL.
Statement of
the Problem
The main objective of the Republic Act No
l0l73 specifically this act wants to answer the following questions:
1. Will the Republic Act No. 10173 provides
introduction mechanism with the production of the National ID System of the
Philippines without the Constitutional Issues?
2. What government agencies or instrumentalities
provide for the production of National ID
System cards?
3. How do we determine their integrity,
accountability, and moral responsibility
in processing “DATA PRIVACY ACT’?
Significant
of the R. A. No. 10173
1. Republic Act No 10173 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 the other Purposes be it enacted, by the
Senate and the House of Representatives of the Philippines in Congress
assembled:
Section
1 Short Tile – This Act shall be known as the “Data Privacy Act of 2012.”
The title
shown that this Act provides introduction
mechanisms for the production of
National ID System in the Philippines even without constitutional issues. As stated in Section 43. Separability Clause.
– If any provision or part hereof is held invalid or unconstitutional the
remainder of the law or the provision not otherwise affected shall remain valid
and subsisting. The government is
ensuring to protect the fundamental human right of privacy , of communication,
while ensuring free flow of information to promote innovation and growth.
In Section 2 Declaration of Policy –
The State recognizes the vital role of
information and communications technology in nation-building and its inherent
obligation to ensure that personal information in information communications
systems in the government and in the private sector secured and protected.
So it clear that this Republic act
10173 known as “Date Privacy Act of 2012, the
Filipino citizen and foreigner residents in this country are ensure for
our security in our privacy by providing
g us PIN No. like in our ATM Cards we are protected and assured in our privacy.
This
Act applies to the processing of all types of personal information and
to any natural and juridical person involved in personal information processing
including those personal information controllers and processors who, although not found or
established in the Philippines, use equipment that are located in the
Philippines, or those who maintain an office branch or agency.
This Act shall not be construed as to have
amended or repealed Republic Act. No. 1405, otherwise known as Secrecy of Bank
Deposits Act; Republic Act No. 6426, otherwise known as the Foreign Currency
Deposit Act; and Republic Act No. 9510, otherwise known as Credit Information System
Act (CISA).
Personal information originally collected
from residents of foreign jurisdictions in accordance with the laws of those
foreign jurisdictions, including any applicable data privacy laws, which being
processed in the Philippines.
2. The government agencies or
instrumentalities to ensure proper and efficient coordination with data privacy
regulators are the Commission. Sec.
8. Confidentiality – The Commission
shall ensure at all times the confidentiality of any personal information that
comes to its knowledge and possession.
The Department of Information and Communication Technology (DICT),
Social Security System (SSS), Government Service Insurance System (GSIS), Land
Transportation Office (LTO), Bureau of
Internal Revenue (BIR), Philippine Health Insurance Corporation (PHILHEALTH),
Commission on Elections (COMELEC), Department of Foreign Affairs (DFA),
Department of Justice (DOJ), and Philippine Postal Corporation (PHILPOST)
3. The Integrity, accountability and
moral responsibility of the assigned government agencies and instrumentality
are under the office of the President.
Under Section 21. Principle of Accountability state that – Each agencies
or personal controller is responsible
for personal information under its control or custody, including information
that have been transferred to the third party for processing, whether
domestically or internationality, subject to cross-border arrangement and
cooperation.
The personal information controller
is accountable for complying with the requirements of this Act and shall use
contractual or other reasonable means to provide a comparable level of
protection while information are being processe3d by the third party.
The personal information controller shall
designate an individual or individuals who are accountable for the
organization’s compliance with this Act.
The identity of the individual so designated shall be made known to any
data subject upon request.
Section 22. Responsibility of Heads of Agencies – All
sensitive personal information maintain by the government, its agencies and
instrumentalities shall be secured, as far as practicable, with the use of the
most appropriate standard recognized by the information and communications technology
industry, and as recommended by the commission.
The head of each government agency or instrumentality shall responsible
for complying with the security requirements mentioned herein while commission
shall monitor the compliance and may recommend the necessary action in order to
satisfy the minimum standards.
Conclusions:
Republic Act No 10173 known as “Data
Privacy Act of 2012” which provide the
introduction in mechanism for the production of the National ID System of the Philippines even
without constitutional issues are going to push through in order to promote
the national development for our country. By the fastest growing of the information
technology, it help us easier to do our works
Even we strike down, belief it or not
computers nowadays improve the quality of life in the Philippines. It is easy for us to contact our relatives
who live far away from us through the use of the internet. We easy
do our assignment with the use of the computers by research through
internet, too. We can communicate also and look some pictures of our friends
and relatives using computers through facebook
in the internet. It
also entertain us by installing cable in our houses we watch international movies in the different countries. The use of computers in the supermarkets and
stores, process retrieve and transmit data to improve our bureaucracy were already implemented. Computers work
wonders to achieve the efficiency both government and private industry. The fastest growing of information technology
we can now send our messages or papers to our professors, classmates, friends
and relatives through blog, twitter and email addresses.
The implementation of the Republic Act
10173 known as Data Privacy Act of 2012, for the use of introduction in the mechanism
of production of the National I D
System even without constitutional issues we cannot eradicate it due to the
fastest growing technology. As the Act mentioned or revealed it that they
will give protection and ensured the
citizens and foreign residence for our safety in our privacy. In case of illegal tapping, cybercrime, photo
and video voyeurisms , pornography, sex movies and hackers we are safe in this
Republic Act No. 10173 known as Date Privacy Act of 2012. Having a National ID System Cards is pattern in the United State as well as our
laws are also pattern in the United State.
In R. A. 10173 assured that in case of
unauthorized processing of personal information; accessing personal information
due to negligence; improper disposal of personal information ; processing of personal information for unauthorized purposes shall;
be penalized according to the crime they are committed.
References:
Republic Act
No 10175, S. No. 2796, H No. 5808
Case of Blas
F. Ople vs. Torres, G. R. No. 127685, July 23, 1998.
Administrative
Order No 308, as known as “Adoption of National Computerized Identification
Reference System.
R. A. 9775,
An Act Defining the Crime of Child Pornography, Prescribing Penalties therefor
and for other purposes.
R. A. Act
No. 8792, June 14, 2000.
Rule on
Electronic Evidence, July 21, 2001.
Prepared
by :
CARIDAD F. MAGUAD
5/5/2013
SUBMITTED
TO:
ATTY . BERNE
GUERRERO
Professor in
TECH in the LAW
