Cybercrimes and the Search and Seizure Clause under the Constitution

The list of cybercrimes in the Philippines is increasing. With the enactment of RA 9775, which is based extensively on US laws and jurisprudence on cyber pornography, the issue of legal enforcement raises a constitutional specter: how do you enforce these laws within the context of the search and seizure clause of the 1987 Constitution?

Article III, Section 2 of the Bill of Rights, states:

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 (emphasis and underscoring supplied)


The requirement of particularity under the Constitution is very important. The rationale for this is clearly explained in the 1967 case of Stonehill vs. Diokno (20 SCRA 383). The Supreme Court through Chief Justice Concepcion held that the objective of this provision is the elimination of general warrants, which had been abused by authorities. The consequence therefore for failure to comply with the specificity requirement is provided in Section 3(2) of Article III:

Section 3..
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding (emphasis supplied).


Applied to cybercrimes, consider the following wording in a warrant: Any pornographic material found in the computer shop of X depicting minors engaged in sexual intercourse (in relation to RA 9775). On the surface, it may be argued that the terms of the warrant are sufficiently particular. It may be argued that the wording of the warrant is not the detestable fishing expedition sought to be avoided by the constitutional provision.

In reality however, once the NBI or any law enforcer searches the computer of the suspect, how broad is the scope of the search? Is it limited to the contents of the hard disk? When a computer file contains a list of passwords, will the NBI or law enforcer be allowed to use said passwords to open a suspect’s private account in a porn site?

The problematic part in search warrants is that if there are other illegal items found as an incident of a valid search warrant, there is nothing which precludes the NBI or the law enforcer from adding to the criminal charges against the accused based on the plain view doctrine. If downloaded movies are found in one’s computer, and used in furtherance of selling pirated films, then additional charges may be filed. The question is what is "plain view” in relation to the Internet?

Neither the US nor the Philippine Supreme Court has answers yet in respect of these technological developments. The test of "reasonable expectation of privacy" has been offered as a possible way out of this dilemma. But what is reasonable is still subject to debate. The password listing found in the suspect’s computer may be regarded as reasonably private.

In my view, the search should be limited only to what was alleged in the search warrant. Any other illegal material found as incident to the search should be excluded in as much as they don’t really count as within the “plain view”. Imagine the mischievous consequences if the search and seizure of these other materials will result in additional criminal liability. The search warrant on computers can be used as a political tool to harass activists and other political personalities. Under an imagined violation, the search warrant for their computers can be used to discover items “potentially seditious”, among others.

There is a reason why modes of discovery have limited application in criminal cases. The need for discovery of the State must be tempered with a proper regard for constitutional right to privacy and other equally important constitutional rights of the accused. This is basically the principle of limited government. Against the powers of the State, the Bill of Rights is the only weapon of the citizen.

BRYAN A. SAN JUAN

Entry No. 15