An Orwellian Society: Revisiting Surveillance in the Philippines and a

move for a Culture of Privacy to the Rule of Law.

Emmanuel S. Caliwan

I don't want to live in a world where everything I say, everything I do,

everyone I talk to, every expression of creativity and love or friendship is
recorded.

Chapter 1

Background of the Study

Data and Information are sources of power in the century we live.

Government and Non-government institutions have made it their task to be

ahead of everything by getting data from people at large. Data mining have

been the practice of not only the Government offices who ask people a lot of

information whenever, they require you to fill up their different

forms.Surveillance is a key dimension of the modern world and in most

countries people are all too aware of how surveillance affects them. Not only

in London and New York but also in New Delhi, Shanghai and Rio de Janeiro

video cameras are a familiar sight in public places. Travelers through airports

everywhere are conscious that they not only have to negotiate twentieth-

century passport control but also newer devices such as body scanners and

biometric checks that have proliferated since 9/11. And if these have to do

with security, other kinds of surveillance, relating to routine and mundane

purchases or online access or participation in social media, are also

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increasingly ubiquitous. We have to show ID, insert passwords and use

coded controls in numerous contexts from making online purchases to

entering buildings. Every day, Google notes our searches, prompting

customized marketing strategies. But what does this mean, socially,

culturally, politically? If we simply start with new technologies or regulatory

regimes we may acquire some sense of the scope of this phenomenon but

will we understand it? Certainly, getting an idea of the magnitude and rapid

spread of data processing is vital if the surveillance surge is to be

appreciated for what it is, and discovering just whose life chances and

opportunities are affected by surveillance will galvanize efforts to rein it in.

But this conversation is intended to do more, to dig deeper to probe the

historical and Western origins of todays surveillance and to raise ethical as

well as political queries about its expansion.1

SNOWDEN AND GLOBAL SURVEILLANCE

All we know so far about how surveillance how it is done and who is behind

is all thanks to one man. Edward Snowden, a 31 year old US citizen, former

Intelligence Community officer and whistleblower. The documents he

revealed provided a vital public window into the NSA and its international

1 Bauman Z. and Lyon D. Liquid Surveillance Polity Press 2013

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intelligence partners secret mass surveillance programs and capabilities.

These revelations generated unprecedented attention around the world on

privacy intrusions and digital security, leading to a global debate on the

issue.

Documents revealed by Snowden show that the US intelligence community

and its partners including the UK, Israeli and German spy agencies are

involved in warrantless mass surveillance of citizens domestically and

abroad. Numerous documents show that, beyond the espionage performed

for counterterrorism purposes, the NSA and its partners carried out political

and industrial espionage, including the bugging of EU and UN buildings and

the collection of phone and email data from Brazils Ministry of Mines and

Energy2. Edward Snowden revealed in March that the MYSTIC surveillance

programme run by the US National Security Agency (NSA) monitors local

telcos5 and scrapes mobile networks for so-called metadata information

that reveals the time, source, and destination of calls.3

2 Retrieved from https://edwardsnowden.com/frequently-asked-questions/

3 Retrieved from Devereaux, D., Greenwald, G., & Poitras, L. (2014, May 19). Data
Pirates of the Caribbean: The NSA Is Recording Every Cell Phone Call in the
Bahamas. The Intercept. https://firstlook.org/ theintercept/article/2014/05/19/data-
pirates-caribbean-nsarecording-every-cell-phone-call-bahamas

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FACEBOOK AND THE PHILIPPINES EXPERIENCE

In the advent of Facebook the most popular social networking site (SNS). A

new form of surveillance is created. SNS are typical applications which are

known as Web 2.0 this are web based platforms that integrate different

media platforms, information and communication technologies, which allows

the generation of profiles that display information and connections of

people.(Fuchs 2009)

Web 2.0 surveillance is the most popular form of data surveillance in the

Philippines since Data in the Philippines is voluntarily uploaded and shared

by its netizens on social media through mobile and landline networks and is

a gold mine for any state or non-state surveillance.

Sociologist all over the globe have seen this phenomenon as living in the

Surveillance Societies (Lyon, 1994) and that the era only found in the

novel of George Orwell the Big Brother phenomenon is now upon us.

Legal Background

In the Philippines the advent of Terrorism, the post 9/11, gives rise to a

sense of Human Security Culture which justifies legal forms of surveillance.

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Figure 1.1 NSA Surveillance

THE LEGAL ARENA

On 6 March 2007, the Human Security Act (HSA) was signed into law by

former President Gloria Macapagal-Arroyo. Section 7 of the HSA specifically

allows law enforcement agencies to listen to, intercept and record, with the

use of any mode, form, kind or type of electronic or other surveillance

equipment or intercepting and tracking devices, or with the use of any other

suitable ways and means for that purpose, any communication, message,

conversation, discussion, or spoken or written words between people

identified by the government as terrorists or even on the slight suspicion

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of being terrorists.4 Five years later, the Cybercrime Prevention Act of 2012

(CPA 2012) was signed by current President Aquino. Section 12 of the law

gave law enforcement agencies the power to collect or record by technical

or electronic means traffic data in real-time associated with specified

communications transmitted by means of a computer system. In February

2014, the Supreme Court struck down this section of the CPA 2012 and

ruled that real-time collection of network traffic violates the constitution. A

month before CPA 2012 was put into law, Aquino signed the Data Privacy Act

of 2012 (DPA 2012). This law defined the rights of a data subject as well

as the responsibilities of data processors to ensure privacy while ensuring

free flow of information to promote innovation and growth. It created the

National Privacy Commission where all complaints on unauthorized

processing of personal information and sensitive personal information,

accessing personal information and sensitive personal information due to

negligence, improper disposal of personal information and sensitive

personal information, among others, would be heard and processed. While

there are no specific provisions on surveillance per se, the rights given to

data subjects and prohibited acts are added safeguards against any kind of

surveillance, in particular from the state.5

4Bahague, R. Communications surveillance in the Philippines: Laws and the

struggle for the right to privacy, Global Information Society Watch 2014

5 Ibid.

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Such legislation only put forward a surveillance/privacy dichotomy without a

real consideration to the rule of law concepts.

Having laid down such premise the researcher wants to argue that the Rule of

Law concepts is what is missing in the legal framework.

II. Statement of the problem

In this paper I would argue that Orwellian society exist because we limit our

legal framework with either surveillance or privacy.

In the end I wish to argue that the answer to the problem of dichotomy is by

utilizing Judge Posners view of a Rule of Law framework.

The Main problem that the researchers wish to interrogate

How are the concept of privacy and surveillance seen in the Philippines in the

legal literature?

Sub problems are:

What are the specific provision of the Data Privacy Act which promotes legal

privacy?

What are the legal effects of the Humans security in the surveillance/privacy

dichotomy?

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III. SIGNIFICANCE OF THE STUDY
In our times that all action involves the production and utilization of data. It

is of outmost significance that we be mindful of what we create.

This paper aim to be a critical window interrogating the existing knowledge

on the field by expanding it and suggesting an alternative view rather that

looking only on a surveillance and privacy dichotomy.

IV. OBJECTIVE OF THE STUDY

The main objective of the study is to show that the surveillance and privacy

dischotomy is not sufficient in providing legal solution to the existing status

quo of the Orwellian Society.

A new consideration should be given in interogationg this legal concept for

the times are changing and new answers should be created.

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V. SCOPE AND LIMITATION OF THE STUDY

This paper would focus mainly on the existing literature on Human Security

and the Surveillance/Privacy dichotomy on our legal literature in the

Philippines by analyzing the provision of the Human Security act vis a vis the

Data Privacy Act.

The researcher also wish to interview the newly created Philippine Privacy

Commission to see their agencies expert opinion in the research problem of

this paper.

VII. DEFINITION OF TERMS

In this paper the researcher wish to utilize the working definition of the

following term to facilitate the clear understanding of the phenomenon

1. Data anything a person produce in a globalized world. Is a distinct

piece of information, usually formatted in a special way.

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2. Data mining a practice of examining large databases in order to

generate new information. Is an analysis of data for relationships that

have not previously been discovered.

3. Data Privacy is the aspect of information technology (IT) that deals

with the ability of an institution, organization, individual to determine

what should be shared in public.

4. Data Protection is a process of safeguarding important information

from corruption or loss.

5. Data subject refers to an individual whose personal information is

processed.
6. Data Surveillance any act interfering, intercepting, and recording of

personal data of a data subject without his consent.

7. Information and Communications System refers to a system for

generating, sending, receiving, storing or otherwise processing

electronic data messages or electronic documents and includes the

computer system or other similar device by or which data is recorded,

transmitted or stored and any procedure related to the recording,

transmission or storage of electronic data, electronic message, or

electronic document.
8. Personal information refers to any information whether recorded in a

material form or not, from which the identity of an individual is

apparent or can be reasonably and directly ascertained by the entity

holding the information, or when put together with other information

would directly and certainly identify an individual.

9. Privacy as a group value (public sphere): The right of privacy exists

because democracy must impose limits on the extent of control and

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 direction that the state exercises over the day-to-day conduct of

individual lives.

Chapter 2
Review of Related Literature

(not yet finish)

Chapter 3
Methodology

Research is the systematic indulgence of ones curiosity - - - and

when systematically pursued for the elucidation of events, we call it
science. - Felix Frankfurter

In a general sense the research will utilize a socio-legal method since

as the researcher believes that law is influenced by the prevailing

social values and ethos. Most of the times, law also attempts to mold

or change the existing social values and attitudes. Such a complex

nature of law and its operation require systematic approach to the

understanding of law and its operational facets. A systematic

investigation into these aspects of law helps in knowing the existing

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 and emerging legislative policies, laws, their social relevance and

efficacy6
Law does not operate in a vacuum. It has to reflect social values,

attitudes and behavior. Societal values and norms, directly or

indirectly, influence law. Law also endeavors to mould and control

these values, attitudes and behavioral patterns so that they flow in a

proper channel. It attempts either to support the social system or to

change the prevalent social situation or relationship by its formal

processes. Law also influences other parts of the social system. Law,

therefore, can be perceived as symbolizing the public affirmation of

social facts and norms as well as means of social control and an

instrument of social change.7

This research therefor can be categorize as both descriptive and

analytical.
Descriptive in a sense that it will describe the state of affairs as it

exists at present. It will describe the phenomenon of Data Surveillance

and Data Privacy in the present context. It is also analytical because

the researcher will use the description or the status quo of the

surveillance/privacy dichotomy to suggest that the trend we follow

would lead to a state of legal paradox.

The researcher will utilize as his analysis tool. Dialectic analysis in

the looking at the surveillance /privacy dichotomy by interrogating the

6 Vibhute, K. Legal Research Method

7 Lawrence M Friedmann and Steward Macaulay, Law and Behavioral Science

(Bobbs-Merrill Co, Inc, Indianapolis, 1969),

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extent document particularly legal documents and cases in the

Philippine perspective in the light of Justice Posners and Umberto

Ungers Rule of Law Concept.

This methodology will use case study of written materials on the first

order. After such case study have been done and a thematic content

have already been identified. The Researcher will supplement this

research with key informant interview The Data Privacy Commission

and the Foundation for Media Alternatives to see form the grass roots

the real phenomenon.

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