Friday, March 14, 2008

My Pound of Flesh Argument Against Habeas Data

The Supreme Court of the Republic of the Philippines (SCORP) has just issued its first two Writs of Habeas Data based on the Rule of Court it promulgated just a month ago:

SECTION 1. Habeas Data.—The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.
Is the Right to Privacy in Life, Liberty and Security a substantive new democratic right? The Brazilians, Colombians, Mexicans, Argentines, Peruvians, Guatemalans and others certainly seem to think so as Chief Justice Reynato Puno readily admits in a recent speech since in those and other Latin American countries AMPARO and HABEAS DATA are full Constitutional Rights popularly ratified at plebiscite. Not mere Rules of Court, one might observe!

As a judicial remedy available to any person or his blood relatives and in-laws to the 4th degree, it is plain that the Writ of Habeas Data seeks to protect from violation or threat by the acts of commission or omission of any public or private entity -- a certain right -- the right to privacy in life, liberty or security.

Honestly speaking I'd never heard of this particular formulation before. Where might it have come from? From the looks of it, SCORP pieced this right together from several components of the United Nations Universal Declaration of Human Rights, in particular:

Article 3. Everyone has the right to life, liberty and security of person.

Article 12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

SCORP's Rule on the Writ of habeas data evidently establishes a substantial new right which is a mashup of these two articles of the 1948 UN Declaration. Two new substantive rights for the price of one writ!

Then of course there is this Fly in the Ointment, which empowers the Court to make Rules:
1987 Constitution Art VIII Sec. 5(5) 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.
Some people have even said that a culpable violation of the 1987 Constitution evidently attends the establishment by SCORP of habeas data and amparo. Here is what the SCORP has done with habeas data.
SEC. 16. Judgment.—The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied. Upon its finality, the judgment shall be enforced by the sheriff or any lawful officer as may be designated by the court, justice or judge within five (5) work days.
Speedy Justice is promised by a Court with a million case backlog overall and that is still sitting on thirty year old Marcos-era cases. Ten (10) days to decide upon the "deletion, destruction or rectification of erroneous data or information" in some public or private data base (Military, Press, Academe, Corporate, NGO, Government data bases, for example)? Five days for the sheriff to carry it out??

But I also have a metaphysical objection to habeas data. Like pure energy, data and information cannot really be destroyed -- only transmuted or transformed. My proof of this is the very next provision in the SCORP's habeas data Rule in which the Sheriff who has just deleted, destroyed or rectified some erroneous data or information must make a compleat return of service--
SEC. 17. Return of Service.—The officer who executed the final judgment shall, within three (3) days from its enforcement, make a verified return to the court. The return shall contain a full statement of the proceedings under the writ and a complete inventory of the database or information, or documents and articles inspected, updated, rectified, or deleted, with copies served on the petitioner and the respondent. The officer shall state in the return how the judgment was enforced and complied with by the respondent, as well as all objections of the parties regarding the manner and regularity of the service of the writ.
Above provision makes starkly clear what the BIG problem is with habeas data. In any public or private data base, the ERRONEOUS information about Petition Bill Luz for example, is inextricably MIXED IN with perhaps CORRECT information about him, or information that cannot be adjudged to be "right" or "wrong" because it may be in the nature of opinion or artistic and journalistic expression Indeed all information about him cannot be separated from all information NOT about him without looking at a complete inventory of the database or information, to which Mr. Luz, the Sheriff and the Supreme Court cannot conceivably have any right to inspect.

In a box of marbles of many colors, you cannot remove just the RED ones for example without looking at the blue, white and yellow one too. But I cannot do better than William Shakespeare who had Portia explain the same thing to the Supreme Court of the Duke of Venice and to Shylock in the Merchant of Venice (Act IV, Scene 1):

A pound of that same merchant's flesh is thine:
The court awards it, and the law doth give it.

Most rightful judge!

And you must cut this flesh from off his breast:
The law allows it, and the court awards it.

Most learned judge! A sentence! Come, prepare!

Tarry a little; there is something else.
This bond doth give thee here no jot of blood;
The words expressly are 'a pound of flesh:'
Take then thy bond, take thou thy pound of flesh;
But, in the cutting it, if thou dost shed
One drop of Christian blood, thy lands and goods
Are, by the laws of Venice, confiscate
Unto the state of Venice.
How DO you cut a pound of flesh out without getting any of the blood?

The High Court is trying to solve the very real problem of human rights violations in the Philippines but utilizing certain strange and dubious ideas that are not strictly speaking, within the competence of the Court to judge because they are not strictly legal ideas, but deeply scientific and mathematical ideas concerning the nature of digitized network information.

Approached purely from the common sense understanding of the Internet, we may well ask whether or not the Philippine Judiciary is metaphysically capable of ordering or effectively causing the full disclosure, truthful evaluation, correction, suppression or destruction of data about private persons based the petitioner's say-so ("self-determination")?

Because if the answer is NO, then the whole structure of the Writ of Habeas Data is built on logical quicksand.

I am sorry to say that my opinion is hardening about habeas data. It is based on the entirely dangerous notion that DATA CAN BE DESTROYED. It cannot! Not once it reaches the Global Public Domain called the Internet.

Hypothesis: Once a quantum of information is digitized and therefore created in the global public domain of the Internet, it cannot be destroyed without destroying the entire network.

This point of view comes from Information Science and not the Law, but it imposes logical and physical limits on things like the Writ of habeas data. And makes them possibly inutile, if not deluded.

Taken to its logical conclusion, habeas data imposed on societies will run afoul of Freedom of Speech. Because in point of fact, we do not OWN the data about US. It belongs to no one and it belongs to everyone. It is ineradicable by, and impervious to the Writ of habeas data!

No comments: