Students Rights on Freedom of Privacy

HISTORY

Privacy is the ability of an individual or group to seclude themselves, or

information about themselves, and thereby express themselves selectively.
The domain of privacy overlaps security or confidentiality, which can
include the concepts of appropriate use, as well as protection of
information.1 It could also mean as the 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.2 It encompasses the right to be let alone,
limited access, control over information, states of privacy, secrecy,
personhood and autonomy, self-identity and personal growth, intimacy, and
communication.

The right to privacy is one of the civil liberties which are embraced in
natural law. These liberties are recognized in various cultures since time
immemorial. Concomitant to the right of ownership, the right to privacy is
one of basic foundation in the establishment of a civilized society. It allows
the free use and enjoyment of property acquired or possessed, free from
harassment or interruption from another. As part of natural law, the right to
privacy is considered inherent by virtue of human nature.3 Being a natural
right, it sits on the top echelon in the hierarchy of rights and privileges,
even enjoying supremacy over constitutional and statutory rights. Because
of its inherent nature, the right to privacy also applies to students even
those under a private educational institution.

Privacy in the United States

1 https://en.wikipedia.org/wiki/Privacy
2 Yael Onn, et al., Privacy in the Digital Environment , Haifa Center of Law & Technology, (2005) pp. 1-12
3 https://en.wikipedia.org/wiki/Natural_law
A right to privacy is explicitly stated under Article 12 of the Universal
Declaration of Human Rights: No one shall be subjected to arbitrary
interference with his privacy, family, home or correspondence, nor to
attacks upon his honor and reputation. Everyone has the right to the
protection of the law against such interference or attacks.4

In the United States, the early years in the development of privacy rights
began with English common law which protected "only the physical
interference of life and property".5 This developed over several amendments
until the present-day Constitution. Surprisingly, the right to privacy didnt
exist as a constitutional doctrine until 1961 in Poe vs Ullman, and didn't
form the basis of a Supreme Court ruling until 1965 in Grisworld vs
Connecticut.6 The word privacy was not even mentioned in the older
versions of the Constitution. It does not even explicitly include the right to
privacy but have been construed to implicitly contain them as ruled by the
Supreme Court in a number of cases.

The right to privacy is necessarily included in the Fourth Amendment which

states that 'The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized. It is also alluded in
other parts, namely: in the First amendment, as to the privacy of beliefs, the
Third Amendment, as to the privacy of the home as to the use of it in
housing soldiers, the Fifth Amendment, as to the privacy of personal
information, and the Ninth Amendment in ways not necessarily specified in
the other Amendments.7

4 https://en.wikipedia.org/wiki/Right_to_privacy
5 https://en.wikipedia.org/wiki/Privacy_laws_of_the_United_States#Early_years
6 http://civilliberty.about.com/od/equalrights/tp/Where-Did-the-Right-to-Privacy-Origins-Come-From.htm
7 http://www.livescience.com/37398-right-to-privacy.html
For students, they do not lose the right to privacy once they enter the
schoolhouse gate. The protection of students rights to free speech and
privacyin and out of schoolis essential for ensuring that schools provide
both quality education and training in our democratic system and values.
However, these rights are sometimes diminished because of some
reasonable and moral policies which the State promote or recognize. In the
case of New Jersey vs T.L.O. (1985), the Court said that the students have a
legitimate expectations of privacy but that must be balanced with
responsibility for maintaining an environment in which learning can take
place. This was the Case when a reasonable suspicion that a student was
smoking inside the bathroom led to a search which found marijuana inside
the students purse. Also in the case of Veronica School District vs Acton
(1995) where some students questioned the school for requiring all students
to undergo a mandatory drug-testing for athletes, the Court said all
students surrender some privacy rights while at school: They must follow
school rules and submit to school discipline.

Student privacy first entered the national conversation in 1974, with the
passage of the Family Educational Rights and Privacy Act (FERPA), signed
into law by President Ford on August 21. 8 FERPA protects the
confidentiality of student records to some extent, while also giving students
the right to review their own records.

Privacy in the Philippine Setting

As important it is in other jurisdictions, the right to privacy is well

recognized under our own Constitution. Section 3 and 4 of the 1987
Philippine Constitution provides:

8 http://blog.identityautomation.com/education/student-privacy-in-education-part-1-the-history-of-student-
privacy
 xxx Section 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized. xxx

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 law.

2. Any evidence obtained in violation of this or the preceding section

shall be inadmissible for any purpose in any proceeding. xxx

As enshrined in the Constitution, the right to privacy protects us from

unreasonable government intrusion. Even during the Spanish occupation,
the right to privacy is well-entrenced in our culture. In fact, the provisions
above were inserted in the first draft and included in the 1899 Malolos
Contritution which states that:

xxx Article 10 Nobody can enter the place of residence of any

Filipino or foreign resident in the Philippines without his consent,
except in urgent cases of fire, flood, earthquake or any similar danger,
or of unlawful aggression coming from within, or in order to help any
person who therein asks for help. Other than these cases, entry into
the place of residence of any Filipino or foreign resident in the
Philippines, and searching his papers or effects can be ordered only
by a competent court and be executed only in daytime.The search of
papers and effects shall always be made in the presence of the person
 concerned or any member of his family and, in their absence, of two
witnesses from the same neighborhood.However, should a delinquent
caught in fraganti and pursued by the authorities through their agents
take refuge in his place of residence, these agents can enter therein
for the sole purpose of carrying out the arrest.Should the delinquent
seek refuge in another persons house, permission must be first
obtained from its owner. xxxx

xxx Article 12 In no way shall any correspondence entrusted to the

post office or any message sent through telegraph or telephone be
withheld or opened by government authorities. However, by virtue of
an order from a competent court, a correspondence may be withheld,
and whatever message sent through the postal system may be opened
in the presence of a defendant.xxx

The same has likewise been revised and included in the 1935 and 1973
Constitutions. Needless to say, such right is a real right which should be
enjoyed by all citizens of the Philippines, including students.

However, this right is not without a limitation. Similar to the U.S. setting,
the Philippine Supreme Court has decided cases touching on the issue of
the students exercise of the right to privacy. In the recent case of Vivares vs
STC Cebu, G.R. No. 202666 (2014), a group of students posted a
photograph of them in the social media site Facebook where they are seen
drinking and wearing only their undergarments were disallowed to
participate in the graduation ceremonies by the school citing violations of
the Student Handbook. The Court ruled in favour of the school and said that
the posting of photographs in Facebook subjected the photographs to be
seen by the public even though the setting was private or Friends Only.

Aside from the Constitution, Congress also passed the Anti-Wiretapping Law
(Republic Act 4200) on June 19, 1965 to further protect the privacy of
communication. Republic Act 10173, also known as the Data Privact Act,
also became effective on July 25, 2011.