SANGALANG, Arianne Janelle
“That communication tech companies (such as Google, Apple, Facebook, Whatsapp, etc.) should
be banned from encrypting their users data, including the content of their communications, in
such a way that the company cannot retrieve that data even under a court order.”
We are against this position.
The people’s right to privacy is one of the most well-founded freedoms sanctioned by no less
than the Constitution. It guarantees to the people freedom from unsolicited interference,
meddling and prying in matters that are considered to be private dealings. This is indubitably in
keeping as well with our public policy of ensuring social order by respecting the dignity and
peace of mind of people within their zones of privacy. Under Article III, Sec. 3(1) of our 1987
Constitution, it provides:
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 law.
Several other laws have also been promulgated to carry out this noble policy. The right to privacy
in communications and correspondence is also enforced under Art. 723 of the Civil Code of the
Philippines which provides:
Art. 723. Letters and other private communications in writing are owned by the person to whom
they are addressed and delivered, but they cannot be published or disseminated without the
consent of the writer or his heirs. However, the court may authorize their publication or
dissemination if the public good or the interest of justice so requires.
The grant of the Constitution as well as the additional assurance provided by both domestic and
international laws all work for the protection of the right to privacy from abuse and arbitrary
purposes that will be prejudicial to the people involved. This right to privacy involves the
concept of “Zones of Privacy”, the relevance of which the Court explained in In the Matter of the
Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon:
Zones of privacy are recognized and protected in our laws. Within these zones, any form of
intrusion is impermissible unless excused by law and in accordance with customary legal
process. The meticulous regard we accord to these zones arises not only from our conviction that
the right to privacy is a "constitutional right" and "the right most valued by civilized men," but
also from our adherence to the Universal Declaration of Human Rights which mandates that,
"no one shall be subjected to arbitrary interference with his privacy" and "everyone has the right
to the protection of the law against such interference or attacks.”
In determining impermissible intrusions into these zones of privacy, it must be established
whether the person has a reasonable expectation of privacy and whether that expectation has
been violated by unreasonable intrusion. And given the profound attention and protection
accorded to this right, this is arguably expected by any reasonable man in matters involving their
private communications. Because to think otherwise, they would not have engaged privately at
all. They are engaging privately with the confidence that their communications are protected and
kept confidential. This, we think, is exactly the reason why most if not all tech companies are
supporting user data encryption. They have the duty to uphold the confidence of their consumers
that the privacy of their communications are kept intact.
To argue against position does not mean that we are against even reasonable intrusions because
that is a right reserved by the Constitution and the laws to our State for the better interest of
public good and safety. But to ban tech companies from encrypting even the content of their
users communications would be to build an avenue of invading their privacy, by working around
the prohibition of the Constitution. With the height of technological progress that man has
achieved, it is possible to do almost everything easily in the internet. And entrusting the users’
privacy of communications at the mercy of tech companies by allowing them not to encrypt the
same is an absurd idea. This is clearly not the intent of the laws as this presents a huge potential
for abuse and arbitrariness. With this set up there is no guarantee that can ever be provided that
no unauthorized access has been obtained by people handling these communications. And
because it cannot be assured that unreasonable intrusions would never be perpetrated, we are of
the opinion that it is more in keeping with the Constitution and the laws to uphold the status quo;
that is to allow tech companies to continuously encrypt their users data.
