Tyrone Hernandez

ATTITUDE, DISCIPLINE, FAMILY, HONOR, LOYALTY, RESPECT. OSS!!!

Sharing of a mobile number and Data Privacy Act of 2012

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Is the act of person A, disclosing the mobile number of B, to a third person, without B’s consent, considered a violation of RA 10173?

 

The word “privacy” has different meaning to people of different ages, race, class, educational attainment and their perception of it. Some will say that it means “to be left alone”, “don’t bother me” and “mind your own business”. For the young ones, it will probably mean not getting that precious star-stamp on their hand to show to their parents that they did well at school, so when they arrive they put their hand inside their pocket so parents will not notice it. As for the teenagers, privacy, most often than not means not disclosing their crush to their parents and friends even though it is part of growing up that your friend teases you to some guy o girl. Lastly, as grownups, privacy is more of a lifestyle than the word itself. As we grow old we encounter different types of people in our lives that we get privacy from them in a different perspective. There are those who one day bought a fancy house and a sports car and you end up thinking if are they doing illegal things or maybe they won the lottery, the fact that we end up speculating those things make us think more about their lives and how privately they accomplished it without a hint of knowledge they gave us on how they did it.

But what is really privacy?

It is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively.[i]

From the definition of privacy it is the seclusion aspect which stands out the most. The person wants to be secluded from everything, current events, social media, socializing and not to be left off any information pertaining to them is also secluded.

Right to Privacy

This one is different compared to privacy because of the fact that it is now a “right’. It means that there is a law which recognizes privacy to individuals and affords protection to them and even imposes penalties for violations thereof. As defined, the right to privacy is our right to keep a domain around us, which includes all those things that are part of us, such as our body, home, property, thoughts, feelings, secrets and identity. The right to privacy gives us the ability to choose which parts in this domain can be accessed by others, and to control the extent, manner and timing of the use of those parts we choose to disclose.[ii]

RA 10173 – Data Privacy Act of 2012

The 1987 Philippine Constitution specifically under the Bill of Rights mentioned that “The right of the people to be secure in their persons, houses, papers, and effects” and “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.” Those rights made it clear that the framers intended the importance of privacy. Also, under the Constitution, one of the state policies is that “the State recognizes the vital role of communication and information in nation-building.” This  means that privacy in communication is a factor in the everyday improvement of our country by the Government in their dealings with different entities to promote the country’s general welfare which is the utmost importance of the existence of a state.

Gone are the days when we have to call an operator just to send a message to a loved one’s ever reliable pagers which were a trend back then namely the Easycalls and the Jazz Pagers which as 90’s kid I saw Bobby Andrews and Angelu de Leon endorse it for their show T.G.I.S..

Fast forward to 2013, where we have all sorts of technology in our grasp, the smart phones, the tablets, the laptops, mp3 / mp4 players, and most important of all is the internet. In my opinion, you can do everything online, watch movies, go shopping, buy a car, as a hub for online buying/selling and sadly violations of privacy of people mostly done in social media websites. Who can forget the mishap that happened to Chris Lao who was reviewing for the Bar examinations that time and is now a lawyer, wherein he traversed the mighty flood in Quezon City only to end up destroying his car due to the fact that he was not informed that even the car cannot conquer those waist-deep flood. Also, the incident involving Blair Carabuena who slapped a MMDA officer which was recorded and seen on Youtube resulting to the butt of jokes by “netizens”.  Do we belong to the people who bombarded Lao and Carabuena with harsh words like “stupidity and arrogance” subconsciously threading the fine line of their lives’ privacy or were we the ones who kept our mouth shut, because we would think that “ I don’t care what happened to him, that is his life, his choices, have to live with it. It is clear that there is a difference perspective on privacy on how people react. But are those actions the ones the law regards as intrusion of privacy?

In the course of our daily lives, we will always encounter that dreaded text message from a number you don’t recognize that will offer us a pre-approved credit card that all we need is to reply to their message attaching our personal information addressed to their agent. Moreover, not only selling credit cards but they will offer you a discounted price for a condominium unit in Makati or in the Bonifacio Global City (BGC). Don’t we wonder how they were able to get our numbers knowing fully well that we did not even leave our numbers to any office that they represent or maybe we forgot that we did leave our calling card into one of those fishbowls inside restaurants for business venture. Indeed, in the world of fast-paced, on the go people, majority will tell us that handing out numbers or other people’s number is not really a big thing now. We can see in everyday social media sites that most people leave their mobile number whether it is their personal or work phone number for the whole world. Because they believe that it speeds up transaction and how people interact nowadays. Even if our country is labeled as “conservative STILL” we adopt Western ideas because of the influence of the Western countries to our minds and the society. We try to adopt the New Yorker style of living, living in the edge, fast-paced, no hang-ups but will end up living privacy out of the window.

I hear from  some of my friends that they do not like or even feel secured that that their number was given to a certain person without their consent. So if they end up receiving a call from someone they do not know they get pissed off. But personally, I think it is a shallow problem. If you feel that your privacy is threatened by the said fact, next time they call, just don’t answer it, its not your loss. What so difficult in pressing that decline button when someone calls you? Is it really a hassle? I believe not. There are far more serious problem that we need to attend to compared to receiving calls from strangers. So if you do not want to be disturbed, don’t even use a cell phone. Because everyone will always find a way to know your number and we have to thank the Internet for that.

Before I entered law school, I worked for a bank as a Business Development Officer. In my field of work it is mostly with regard to Personal Financial Services AKA the Sales Department. Referrals as they say is the lifeblood of every salesman and what better way to obtain them are through mobile numbers of friend’s friends, brothers, sisters, girlfriends or boyfriends, and the connection from School all the way from grade school to college. We get plenty of mobile numbers and we filter in who to call first on the basis on how they know you as a friend. It is where people get annoyed when someone calls them in the middle of a meeting just to offer bank products and get upset on who gave them their mobile number and felt that their privacy was compromised.

           

 

RA 10173AN 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 OTHER PURPOSES [iii]

It is more commonly known as the Data Privacy Act of 2012 was approved into law in August 15, 2012 under the current Aquino administration.

According to its Declaration of Policy:[iv]

It is the policy of the State to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth. 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 and communications systems in the government and in the private sector are secured and protected.”

Is it a violation to give out someone’s mobile number to another person without its consent?

In my humble opinion, I believe it is not a violation of the Act. First and foremost, let us look at the Scope of the said act:

SEC. 4. Scope. – 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 in the Philippines subject to the immediately succeeding paragraph: Provided, That the requirements of Section 5 are complied with.[v]

From the wordings of the law, I believe that the intention of the lawmakers to exclude the act of giving another’s number without its consent to a third person will not constitute a violation. Because under the scope, the Act applies to the processing of all types of information and to any natural and juridical person involved in personal information processing, just by looking at that phrase, it is hard for me to correlate giving or simply sharing another’s number without the consent to the scope of the law.

In a scenario, you are at a club with your friends having a good time and you saw your crush from way back and only at this moment that you feel that it is your only chance to find a way to communicate with her. Surprisingly, she was with a friend whom you also know, logic will tell you to approach the friend to be the “bridge” because this is the safest way just to be associated with your crush even on that one single night and the chances of you not being totally ignored will be higher than just straight up approaching her and just ask ridiculous question and when you are able to accomplish getting along with the friend now you will ask any information about her, who she with? Does she have a boyfriend? All this will play into your mind, and you will consider the fact that how about getting her number from her friend will most likely be your first avenue and without any hesitation the friend gave your crush’s number to you. Is the friend’s act within the ambit of the law? No, because according to the law “processing  refers to any operation or any set of operations performed upon personal information including, but not limited to, the collection, recording, organization, storage, updating or modification, retrieval, consultation, use, consolidation, blocking, erasure or destruction of data.”[vi]

In the scenario given, was there the operation or any set of operation? The guy simply asked the friend for his crush’s number, it was just a simple request and I believe what the law contemplated as operation and request are far from one another in application. I believe that we cannot consider the giving of someone’s number to be in equal footing with the law’s wording of operation or set of operation. Because for me whenever I hear the word operation or set of operation, there is a step by step procedure like what we learned in Science in grade school as the “Scientific Method” to be followed and there are norms and guidelines that are attached to it. Most often than not it will entail the services of well qualified persons to do the job as they have the knowledge of the ins and outs of the said operation.

What the law provides is to have an operation or any set of operations which runs contrary to the problem given at hand.

Under SEC. 19. Non-Applicability. – The immediately preceding sections are not applicable if the processed personal information are used only for the needs of scientific and statistical research and, on the basis of such, no activities are carried out and no decisions are taken regarding the data subject: Provided, That the personal information shall be held under strict confidentiality and shall be used only for the declared purpose. Likewise, the immediately preceding sections are not applicable to processing of personal information gathered for the purpose of investigations in relation to any criminal, administrative or tax liabilities of a data subject.[vii]

Even the law admitted that there are situations that the preceding sections of the law are not applicable. They are if it is used only for the needs of science and statistical research and for the purpose of investigations to any criminal, administrative or tax liabilities. By having such the law is relax when it comes to attainment of justice and improvement of the welfare of the country.

As we have learned that our courts comprises of courts of equity and courts of justice. There will be instances when we have to disclose a person’s number for the betterment of their well being. A good example is when a person runs away from his house because of problems that he or she cannot share to their loved ones and equity and human nature dictates that if you know their whereabouts it will be best to give their number to their loved ones as a friend who only thinks about what is good for its well being. Will it be a violation? I think it is not, for what you did is somewhat brave enough that your friend will not understand at first that you sold him/her out.

As for attainment of justice, if you have any information on the whereabouts of a suspect in crime and you realize you have their mobile number, will it be beneficial to the society that there will be one less element of crime and at the same time you gave justice to the persons he or she did wrong to. Like the famous saying goes “It’s like hitting two birds with one stone.”

 

Second point that there will be no violation is that under Section 12[viii] of the law which states that

SEC. 12. Criteria for Lawful Processing of Personal Information. – The processing of personal information shall be permitted only if not otherwise prohibited by law, and when at least one of the following conditions exists:

            xxx     

            xxx

            xxx

            xxx

            xxx

            (f) The processing is necessary for the purposes of the legitimate interests pursued by the personal information controller or by a third party or parties to whom the data is disclosed, except where such interests are overridden by fundamental rights and freedoms of the data subject which require protection under the Philippine Constitution.     

I believe nowhere from the wording of the abovementioned enumeration of the law that the word consent is vital to it. According to it “it is necessary for the purposes of the legitimate interest of a third party, except interests are overridden by fundamental rights and freedoms of the data subject which require protection under the Philippine Constitution.

Even our Constitution provides under Article II Section IV, “The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil service.”     

Based on that expressed provision of our substantive law, even if there is the permissive word “may” our framers intended that there will be somehow someway that our privacy will be called upon towards the betterment of our country without incurring any violation. The word “consent” is not even discussed in the said section.

Last point why it is not a violation of the Act is under Sec. III when they defined Sensitive personal information as : Sensitive personal information refers to personal information:

(1) About an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations;

(2) About an individual’s health, education, genetic or sexual life of a person, or to any proceeding for any offense committed or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such proceedings;

(3) Issued by government agencies peculiar to an individual which includes, but not limited to, social security numbers, previous or cm-rent health records, licenses or its denials, suspension or revocation, and tax returns; and

(4) Specifically established by an executive order or an act of Congress to be kept classified.

According to the problem given, it was the mobile number which is given. From the enumerations above, in my humble opinion I see nothing there that can be equated to a mobile number as sensitive personal information. Probably, the closest thing would be under number 3 where it states that “Issued by government agencies peculiar to an individual” but in truth, it is not the government which gives us the mobile numbers. It is the cellular companies who give us our numbers and some even have personal or customized mobile numbers which they need to pay extra money out of it. In my view, sensitive personal information would be related to a person’s medical condition which is guarded by the doctor-patient confidentiality agreement between them or bank accounts which was the main subject of the impeached former Chief Justice Corona. Those are the types of information which can be and is classified as sensitive personal information. We cannot consider mobile number to that category.

In my personal opinion, privacy is really an important aspect of our daily lives. Some take it personally and seriously, while others disregard it at most times. I would feel that majority of the people like their privacy and I have no problem about it, even I belong there. But there are things that we can categorize as invasion of privacy or just plain transaction that they were able to get hold of my number. I believe that we have to weigh off this factors as to whether they invade or not. Based on the problem, what was infringed upon was the mobile number and I feel that this is not the type that will make your privacy in limbo. It is only a mobile number consisting of different numbers, it does not make who or what you are. The Data Privacy Act is really a good law, but I feel that the law caters to a different “crowd” meaning that it is a legal framework that punishes illegal acts in the World Wide Web, such as child pornography, hacking of identity, or theft identity but not towards of handing out another’s mobile number without their consent. It is for the IT people not to everyday people who does not possess the same knowledge with regard to information technology.

 

END NOTES  

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