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