Category: Human Rights

What police or arresting officers must do before searching the contents and data stored in your cellular phone

Previously, we stated that the contents and data stored in your cellular phone is protected by the Constitution; that regardless whether your cellular phone is considered a dangerous weapon or have been used to commit an offense, the contents or data stored in it may not be searched without a judicial warrant.

That while it may be legally possible to conduct warrantless search of the physical cellphone itself, the legality of searching without a judicial warrant the contents or data in a cellphone is another thing.  Any police officer who wants to search the contents or data stored in your cellular phone must first obtain a judicial search warrant.

In the case Riley v. California, the United States Supreme Court answered the question of what police must do before searching a cellphone seized incident to an arrest: get a warrant.  

This foreign jurisprudence is important because Philippine Courts often look at US jurisprudence for analogous cases in deciding similar questions of law.

For full text of the Riley decision, see  http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf.

So when you are arrested, or about to be arrested, and the arresting officer or person asks “may I take a look at the contents of your cellphone” or “can you please unlock your cellphone”, your answer should be “no, you cannot search the contents of my cellphone, get a judicial warrant” or something like that.

 

PS: In page 9 of the Riley decision, the author of this article has yet to verify whether the proverbial visitor referred to in the decision is marvin.

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Warrantless search of cellphone and/or its contents.

If you’ve been lawfully arrested, and you are in possession of a cellphone at the time of arrest, may the arresting officer legally search, without a warrant (ie., a warrantless search), your;

1. Cellphone; and/or

2. The contents of your cellphone including pictures, email, videos, and any and all data stored in your cellphone?

As a general rule, the Constitution requires that a search and consequent seizure must be carried out with a judicial warrant; otherwise, it becomes unreasonable and any evidence obtained therefrom shall be inadmissible for any purpose in any proceeding. (Art. 3, Sec. 2 and 3, Constitution)

While the Rules of Court provides that a “person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant” (Rule 126, Sec. 13, Criminal Procedure), a cellphone is not normally a dangerous weapon unless you used it or clearly intend to use it as such.

But even as a dangerous weapon, its contents or data is a separate issue which may not be searched without a judicial warrant.

Even if used to commit an offense, still its contents or data may not be searched without a judicial warrant.

Thus, while it may be legally possible to conduct warrantless search of a cellphone, the legality of searching without a judicial warrant the contents or data of a cellphone is another thing.

“Cell phones and other similar handheld communication devices in common use have the capacity to store vast amounts of highly sensitive personal, private and confidential information – all manner of private voice, text and e-mail communications, detailed personal contact lists, agendas, diaries and personal photographs. An open-ended power to search without a warrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious and significant invasion of the . . . protected privacy interests of arrested persons. If the police have reasonable grounds to believe that the search of a cell phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrant authorizing the search.” (Justice Sharpe, in R v. Manley, 2011 ONCA 128, an Ontario caselaw)

If a search warrant has been issued on the contents, but you secured your cellphone with a password, the arresting/searching officer, even the Supreme Court, cannot (or should not) compel you to unlock your cellphone (Art. 3, Sec. 17, Philippine Constitution).

The current costs of knowing the Philippine Supreme Court Decisions

Judicial decisions applying or interpreting the laws or the Constitution form part of the legal system of the Philippines (Art. 8, Philippine Civil Code), and so it is important to know and be aware of decisions of the Supreme Court of the Philippines.

After all, the people have a fundamental right to information about these judicial decisions according to Art. III, Sec. 7, 1987 Philippine Constitution.

This section 7 right states: “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.”

Meaning, access to documents and papers pertaining to these Supreme Court decisions must be afforded the people and subject only to such limitations as may be provided by law.

Entering into private contract to exercise your right to information on judicial decisions

May the Supreme Court force or compel you, without your consent, to agree to a private contract with a private entity before you can be allowed to know the content of its decisions?

Put differently, may the Supreme Court force you to consent to a private contract first before you can exercise your right to information on these Supreme Court decisions?

More bluntly, may the Supreme Court force you to consent to a private contract which would involve your giving up of your personal private data or “personally identifiable” information (such as your name, email address, postal mailing address, home/mobile telephone number) if you log in to a platform, features, or functionality used by it before you can exercise your right to information on these Supreme Court decisions?

Your consent to enter into a contract is very important (Art. 1318, Philippine Civil Code) and you should not be forced to enter into a contract in order to exercise your right to information on these Philippine Supreme Court decisions.

However, that is not the one happening in http://sc.judiciary.gov.ph/jurisprudence at the moment.

Philippine Supreme Court decisions maybe accessed online via http://sc.judiciary.gov.ph/jurisprudence (last accessed by author on November 10, 2013). When you visit this website, the decisions are presented and arranged according to Year and Month.

And when you select a month in a year, you will be directed to sub-links within http://sc.judiciary.gov.ph/jurisprudence to choose the decision you want to be informed with even if you are not party to that decision.

However, starting January 2013, the website sc.judiciary.gov.ph/jurisprudence controlled by the Philippine Supreme Court could have;

1. Been forcing you or compelling you, without your consent, to agree to a private contract with a private entity before you can be allowed to know the content of its decisions.

2. Been forcing you to consent to a private contract first before you can exercise your right to information on these Supreme Court decisions.

3. Been forcing you to consent to a private contract which would involve your giving up of your “personally identifiable” information if you log in to a platform, features, or functionality used by it before you can exercise your right to information on these Supreme Court decisions.

“Are these happening?” you may ask.

January 2013 to August 2013 decisions

For example, if you click January in 2013 from the http://sc.judiciary.gov.ph/jurisprudence, you will be directed to another link http://sc.judiciary.gov.ph/jurisprudence/2013/toc/january.php listing the decisions for January 2013. But if you do try to read a particular decision, you will be forced or compelled to agree to a private contract with a private entity before you can be allowed to know the content of that particular decision in January 2013. And what is that private entity: Google.

So if you want to read the Supreme Court decision docketed as G.R. No. 173559 January 7, 2013, you will be directed to Google’s:

  • docs.google.com/viewer?url=http://sc.judiciary.gov.ph/jurisprudence/2013/january2013/173559.pdf

Note that you are being directed to get it from docs.google.com.  In effect, you are being forced to agree to Google Docs’ terms of services stated in http://www.google.com/intl/en/policies/terms (last modified by Google on March 1, 2012; last accessed by author on November 10, 2013). By using its docs.google.com services by wanting to read the decision docketed as G.R. No. 173559. January 7, 2013 you are agreeing to the terms of services of Google.

An important clause in the terms of services of Google provides that by using its services (ie., Google Docs), you agree that Google can use your personal data in accordance with its privacy policies. Google’s privacy policy can be seen here http://www.google.com/intl/en/policies/privacy (last modified by Google on June 24, 2013; last accessed by author on November 10, 2013).

Another, in case of your dispute with Google “The laws of California, U.S.A., excluding California’s conflict of laws rules, will apply to any disputes arising out of or relating to these terms or the Services. All claims arising out of or relating to these terms or the Services will be litigated exclusively in the federal or state courts of Santa Clara County, California, USA, and you and Google consent to personal jurisdiction in those courts.” This is part of the terms of services which you were compelled to agree upon.

Thus by trying to read and understand the Supreme Court decision G.R. No. 173559 January 7, 2013, you are being forced and compelled to agree to Google Docs’ terms of services because the website sc.judiciary.gov.ph/jurisprudence controlled by the Philippine Supreme Court published this decision and made it available to online public through Google Docs.

This is true for all decisions from January 2013 to August 2013 found in the website sc.judiciary.gov.ph/jurisprudence controlled by the Philippine Supreme Court.

September 2013 decisions

For decisions beginning September 2013 appearing in the website sc.judiciary.gov.ph/jurisprudence controlled by the Philippine Supreme Court, the online public is being forced and compelled to agree to another private entity’s terms of services because the website sc.judiciary.gov.ph/jurisprudence controlled by the Philippine Supreme Court published and made available to online public decisions beginning September 2013 in this another private entity’s platform: and this entity is Scribd.

Try accessing the September 2013 in Supreme Court’s sc.judiciary.gov.ph/jurisprudence and you will be directed to sc.judiciary.gov.ph/jurisprudence/2013/toc/september.php. In this latter site, last accessed by author on November 10, 2013, if you want to exercise your right to information online on Supreme Court criminal case decision on G.R. No. 189822 September 2, 2013, you will be directed to private entity Scribd’s http://www.scribd.com/doc/173997876/189822.

Scribd’s General Terms of Use can be found in support.scribd.com/forums/33939/entries/25459 (last modified by Scribd on June 10, 2013; last accessed by author on November 10, 2013).

It opens:

“PLEASE READ CAREFULLY THE FOLLOWING TERMS OF USE.  BY REGISTERING FOR, ACCESSING, BROWSING, POSTING, DOWNLOADING FROM OR USING THE SCRIBD PLATFORM, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ANY ADDITIONAL GUIDELINES AND FUTURE MODIFICATIONS (COLLECTIVELY, THE “TERMS”).  IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE SCRIBD PLATFORM IN THE MANNER DESCRIBED IN SECTION 11.2 BELOW.” [emphasis supplied]

Meaning, by accessing, browsing, or downloading Philippine Supreme Court decisions posted by the Philippine Supreme Court in Scribd, you agree to be bound by the terms and conditions imposed by private entity Scribd.

Moreover, you agree to be bound by future modifications; in Terms No. 4, it adds:

4. Modification of these Terms.

Scribd reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time.  Please check these Terms and any Guidelines periodically for changes.  Your continued use of the Scribd Platform after the posting of changes constitutes Your binding acceptance of such changes.  For any material changes to these Terms, such amended terms will automatically be effective ten days after they are initially posted on the Scribd Platform.  We will always make a reasonable effort to notify You if we do change these Terms.” [emphasis supplied]

Whatever those future terms are, the future will tell.

One clause in the terms of Scribd prohibits person under the age of majority in the Philippines or those children under 13 from accesing Scribd – – in effect from accessing the Philippine Supreme Court decision. Terms 1 reads:

 “1. Eligibility.

 The Scribd Platform is not available to persons under the age of majority in their jurisdiction or to any users previously suspended or removed from the Scribd Platform by Scribd.  If you are using or opening an account on the Scribd Platform on behalf of a company, entity, or organization (collectively “Subscribing Organization”), then you represent and warrant that you are an authorized representative of that Subscribing Organization with the authority to bind such organization to these Terms; and agree to be bound by these Terms on behalf of such Subscribing Organization.  BY USING THE SCRIBD PLATFORM, YOU REPRESENT THAT you meet the eligibility requirements in this Section.  In any case, you affirm that you are at least 13 years old, as the Scribd Platform is not intended for children under 13.” [emphasis supplied]

 Let us repeat the Section 7 right in Art. III of the Constitution:

 “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.”

Section 7 did not say “only those of age of majority or at least 13 years of age have the right to information”. However, by asking the online public to go to Scribd and agree to its terms of use before you can exercise your right to information on Supreme Court decision, the Philippine Supreme Court is limiting the exercise of right to information to these decisions published online via Scribd only to those of age of majority or those at least 13 years of age.

What if you will be sued later on by Scribd? “You agree that any action at law or in equity arising out of or relating to these Terms or Scribd will be filed only in the state or federal courts in and for Santa Clara County, California, and You hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.” (Item 16.4 Jurisdiction, Scribd’s General Terms of Use)

Item 2 of Scribd’s General Terms of Use provides that Scribd’s Privacy Policy is incorporated into these Terms by reference. Its privacy policy can be found here http://support.scribd.com/forums/33939-terms-and-policies/entries/25580-privacy-policy (last modified by Scribd on April 18, 2013; last accessed by author on November 10, 2013).

Did you agree to this privacy policy?

The case of December 2012 and past decisions

The Philippine Supreme Court published its December 2012 and past decisions online through its own sc.judiciary.gov.ph/jurisprudence and it thus did not force or compel you to agree to a contract with a private entity. For example, you will find the latest December 2012 decision docketed as A.C. No. 8383, a disbarment or administrative case promulgated on December 11, 2012, in http://sc.judiciary.gov.ph/jurisprudence/2012/december2012/8383.pdf.

The use of Google Doc and Scribd

The author is not saying that the use of Google Doc and Scribd is unreasonable or illegal or should not have been done; actually, the use seems innovative and conforms to current thread on cloud computing. However, questions arise:

1. Did you, as a person who has right to information, know that you may have been or were forced or compelled, without your consent, to agree to a private contract with a private entity before you were able to read and know online the content of the Supreme Court decisions posted online beginning January 2013.

2. Did you, as a person who has right to information, know that you may have been or were forced or compelled, without your consent, to agree to a private contract which involved your giving up of your “personally identifiable” information when you log in to a platform, features, or functionality (ie., Google Doc and Scribd) used by Supreme Court to publish online its decisions beginning January 2013?

You might also ask: “did the Supreme Court notify me or us, before it began using private entities to publish online its decisions that I will have to agree to a private contract with these private entities first before I can exercise my right to information on these public judicial decisions posted online?”

The defense of Section 5.5, Art. VIII of the 1987 Constitution

One might say ‘well the use of Google Docs and Scribd could be within the powers of the Supreme Court; your use of these private entities’ websites is within the Section 5.5 powers of the Supreme Court’.

Section 5.5 powers read:

“Section 5. The Supreme Court shall have the following powers:

x x x

Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.”

But one might also say that compelling you to agree to a private contract to exercise your right to information on judicial decisions is not of the Sec. 5.5 powers as your right to information does not concern the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. After all, were there such rules that say you must go to Google Doc or Scribd first before you can read and obtain online the judicial decision?

Criminal defense of someone you believe to be guilty

What is it like to be the defense attorney of someone you strongly believe to have committed the crime?

“(A) lot better than being the defense attorney of someone you strongly believe did not commit the crime.

Representing the guilty is pretty straightforward. The burden is on the government to prove their case beyond a reasonable doubt. If your client tells you they committed the act, you look for an affirmative defense (e.g. self defense) that is supported by the evidence. If they haven’t admitted the act to you, then you do your best to hold the government to its proof by impeaching its witnesses, questioning the foundations of its evidence and arguing against the inferences being made.

Representing the innocent, however, is completely different. In addition to the above, you also have a constant gnawing at you that no matter what you do, it isn’t going to be enough. The burden has shifted to you to prove their innocence, and it is much, much harder to prove a negative (e.g. someone didn’t do something) than it is to prove someone did something. The case will easily consume you, trumping everything else in your life because someone you have become convinced is truly innocent is at risk of going to prison or facing the death penalty and you are the only one that can prevent it.

If they are convicted, you then get the pleasure of trying to go to sleep each night knowing that if you had just done a little bit more, perhaps asked a different question of a witness or spent just a few more hours digging through documents looking for exhibits, the outcome would have been different and the innocent would be free. It becomes your fault that the innocent person is in prison, even though you did all you could to prevent it. You should have done more. Why didn’t you do more? What could possibly have been more important than that? The case gnaws at you for months, years even decades and becomes one of the things that you will never, ever forget.” (T. Critelli, Esq. / Quora)