G.R. No. 181881 BRICCIO Ricky A. POLLO, Petitioner v. CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE GUZMAN BUENSALIDA, DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III ENGELBERT ANTHONY D. UNITE AND THE CIVIL SERVICE COMMISSION, Respondents.

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CONCURRING AND DISSENTING OPINION

BERSAMIN, J.:

I render this concurring and dissenting opinion only to express my thoughts on the constitutional right to privacy of communication and correspondence vis--vis an office memorandum that apparently removed an employees expectation of privacy in the workplace.

I

Indispensable to the position I take herein is an appreciation of the development and different attributes of the right to privacy that has come to be generally regarded today as among the valuable rights of the individual that must be given Constitutional protection.

The 1890 publication in the Harvard Law Review of The Right to Privacy,[1] an article of 28 pages co-written by former law classmates Samuel Warren and Louis Brandeis, is often cited to have given birth to the recognition of the constitutional right to privacy. The article was spawned by the emerging growth of media and technology, with the co-authors particularly being concerned by the production in 1884 by the Eastman Kodak Company of a snap camera that enabled people to take candid pictures. Prior to 1884, cameras had been expensive and heavy; they had to be set up and people would have to pose to have their pictures taken. The snap camera expectedly ignited the enthusiasm for amateur photography in thousands of people who had previously not been able to afford a camera. This technological development moved Warren and Brandeis to search for a legal right to protect individual privacy.[2] One of the significant assertions they made in their article was the declaration that the common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others,[3] said right being merely part of an individuals right to be let alone.[4]

While some quarters do not easily concede that Warren and Brandeis invented the right to privacy, mainly because a robust body of confidentiality law protecting private information from disclosure existed throughout Anglo-American common law by 1890, critics have acknowledged that The Right to Privacy charted a new path for American privacy law.[5]

In 1928, Brandeis, already a Supreme Court Justice, incorporated the right to be let alone in his dissent in Olmstead v. United States,[6] viz:

The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of mans spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone ̶ the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth. [emphasis supplied]

In 1960, torts scholar William Prosser published in the California Law Review[7] his article Privacy based on his thorough review of the various decisions of the United States courts and of the privacy laws. He observed then that the law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff, in the phrase coined by Judge Cooley, to be let alone.[8] He identified the four torts as: (a) the intrusion upon the plaintiffs seclusion or solitude, or into his private affairs; (b) the public disclosure of embarrassing private facts about the plaintiff; (c) the publicity that places the plaintiff in a false light in the public eye; and (d) the appropriation, for the defendants advantage, of the plaintiffs name or likeness.[9]

With regard to the first tort of intrusion upon seclusion or solitude, or into private affairs, Prosser posited that there was a remedy when a person intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns in a manner that was highly offensive to a reasonable person.[10] The second and third torts established liability when the publicized matter was highly offensive to a reasonable person and was not a legitimate concern of the public if it involved disclosure of embarrassing private facts or placed another before the public in a false light.[11] Lastly, the tort of appropriation afforded a relief when a person adopted to his own use or benefit the name or likeness of another.[12]

In the 1977 landmark ruling of Whalen v. Roe,[13] the US Supreme Court expanded the right to privacy by categorizing privacy claims into two, namely: informational privacy, to refer to the interest in avoiding disclosure of personal matters; and decisional privacy, to refer to the interest in independence in making certain kinds of important decisions.

All US Circuit Courts recognizing informational privacy have held that this right is not absolute and, therefore, they have balanced individuals informational privacy interests against the States interest in acquiring or disclosing the information.[14] The majority of the US Circuit Courts have adopted some form of scrutiny that has required the Government to show a substantial interest for invading individuals right to confidentiality in their personal information, and then to balance the States substantial interest in the disclosure as against the individuals interest in confidentiality.[15] This balancing test was developed in United States v. Westinghouse[16] by using the following factors, to wit: (a) the type of record requested; (b) the information it did or might contain; (c) the potential for harm in any subsequent nonconsensual disclosure; (d) the injury from disclosure to the relationship in which the record was generated; (e) the adequacy of safeguards to prevent unauthorized disclosure; (f) the degree of need for access; and (g) the presence of an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access.[17]

Decisional privacy, on the other hand, evolved from decisions touching on matters concerning speech, religion, personal relations, education and sexual preferences. As early as 1923, the US Supreme Court recognized decisional privacy in its majority opinion in Meyer v. Nebraska.[18] The petitioner therein was tried and convicted by a district court, and his conviction was affirmed by the Supreme Court of the Nebraska, for teaching the subject of reading in the German language to a ten-year old boy who had not attained and successfully passed eighth grade.[19] In reversing the judgment, Justice McReynolds of the US Supreme Court pronounced that the liberty guaranteed by the Fourteenth Amendment denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Justice McReynolds elaborated thusly:

Practically, education of the young is only possible in schools conducted by especially qualified persons who devote themselves thereto. The calling always has been regarded as useful and honorable, essential, indeed, to the public welfare. Mere knowledge of the German language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable. Plaintiff in error taught this language in school as part of his occupation. His right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the Amendment.

In Griswold v. Connecticut,[20] the US Supreme Court resolved another decisional privacy claim by striking down a statute that prohibited the use of contraceptives by married couples. Justice Douglas, delivering the opinion, declared:

By Pierce v. Society of Sisters, supra, the right to educate ones children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, supra, the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U.S. 141, 143) and freedom of inquiry, freedom of thought, and freedom to teach (see Wiemann v. Updegraff, 344 U.S. 183, 195) -- indeed, the freedom of the entire university community. (Sweezy v. New Hampshire, 354 U.S. 234, 249-250, 261-263; Barenblatt v. United States, 360 U.S. 109, 112; Baggett v. Bullitt, 377 U.S. 360, 369). Without those peripheral rights, the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases.

x x x x

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. (NAACP v. Alabama, 377 U.S. 288, 307). Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.

One of the most controversial decisional privacy claims was dealt with in Roe v. Wade,[21] by which the US Supreme Court justified abortion in the United States on the premise that:

This right of privacy xxx is broad enough to encompass a womans decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

x x x x

Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant.

In the Philippines, we have upheld decisional privacy claims. For instance, in the 2003 case of Estrada v. Escritor,[22] although the majority opinion dealt extensively with the claim of religious freedom, a right explicitly provided by the Constitution, Justice Bellosillos separate opinion was informative with regard to the privacy aspect of the issue involved and, hence, stated:

More than religious freedom, I look with partiality to the rights of due process and privacy. Law in general reflects a particular morality or ideology, and so I would rather not foist upon the populace such criteria as compelling state interest, but more, the reasonably foreseeable specific connection between an employees potentially embarrassing conduct and the efficiency of the service. This is a fairly objective standard than the compelling interest standard involved in religious freedom.

Verily, if we are to remand the instant case to the Office of the Court Administrator, we must also configure the rights of due process and privacy into the equation. By doing so, we can make a difference not only for those who object out of religious scruples but also for those who choose to live a meaningful life even if it means sometimes breaking oppressive and antiquated application of laws but are otherwise efficient and effective workers. As is often said, when we have learned to reverence each individuals liberty as we do our tangible wealth, we then shall have our renaissance.

Relevantly, Article III, Section 3 of the 1987 Constitution embodies the protection of the privacy of communication and correspondence, to wit:

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.

x x x x

Yet, the guarantee in favor of the privacy of communication and correspondence is not absolute, for it expressly allows intrusion either upon lawful order of a court or when public safety and order so demands (even without a court order).[23]

In its 1965 ruling in Griswold v. Connecticut,[24] the US Supreme Court declared that the right to privacy was a fundamental personal right; and that the enumeration in the Constitution of certain rights should not be construed as a denial or disparagement of others that have been retained by the people,[25] considering that the specific guarantees in the Bill of Rights had penumbras, formed by emanations from those guarantees that helped give them life and substance. Accordingly, an individuals right to privacy of communication and correspondence cannot, as a general rule, be denied without violating the basic principles of liberty and justice.

The constitutional right to privacy in its Philippine context was first recognized in the 1968 ruling of Morfe v. Mutuc,[26] where the Court affirmed that:

The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt: The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government, safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector protection, in other words, of the dignity and integrity of the individual has become increasingly important as modern society has developed. All the forces of a technological age industrialization, urbanization, and organization operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society.

Morfe v. Mutuc emphasized the significance of privacy by declaring that [t]he right to be let alone is indeed the beginning of all freedom.[27] The description hewed very closely to that earlier made by Justice Brandeis in Olmstead v. United States that the right to be let alone was the most comprehensive of rights and the right most valued by civilized men.[28]

It is elementary that before this constitutional right may be invoked a reasonable or objective expectation of privacy should exist, a concept that was introduced in the concurring opinion of Justice Harlan in the 1967 case Katz v. United States,[29] no doubt inspired by the oral argument[30] of Judge Harvey Schneider, then co-counsel for petitioner Charles Katz. Since the idea was never discussed in the briefs, Judge Schneider boldly articulated during his oral argument that expectations of privacy should be based on an objective standard, one that could be formulated using the reasonable man standard from tort law.[31] Realizing the significance of this new standard in its Fourth Amendment jurisprudence, Justice Harlan, in his own way, characterized the reasonable expectation of privacy test as the rule that has emerged from prior decisions.[32]

Justice Harlan expanded the test into its subjective and objective component, however, by stressing that the protection of the Fourth Amendment has a two-fold requirement: first, that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable.[33] Although the majority opinion in Katz v. United States made no reference to this reasonable expectation of privacy test, it instituted the doctrine that the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.[34]

In the 1968 case Mancusi v. DeForte,[35] the US Supreme Court started to apply the reasonable expectation of privacy test pioneered by Katz v. United States and declared that the capacity to claim the protection of the Amendment depends not upon a property right in the invaded place, but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion.[36]

II

Bearing in mind the history and evolution of the right to privacy as a Constitutionally-protected right, I now dwell on whether the petitioner, a public employee, enjoyed an objective or reasonable expectation of privacy in his workplace, i.e. within the premises of respondent Civil Service Commission, his employer.

At the outset, I state that the right to privacy involved herein is the petitioners right to informational privacy in his workplace, specifically his right to work freely without surveillance or intrusion.[37]

I find relevant the doctrine laid down in OConnor v. Ortega,[38] where the US Supreme Court held that a person was deemed to have a lower expectation of privacy in his workplace. The decrease in expectation of privacy was not similar to a non-existent expectation, however, for the US Supreme Court clarified:

Given the societal expectations of privacy in ones place of work expressed in both Oliver and Mancusi, we reject the contention made by the Solicitor General and petitioners that public employees can never have a reasonable expectation of privacy in their place of work. Individuals do not lose Fourth Amendment rights merely because they work for the government, instead of a private employer. The operational realities of the workplace, however, may make some employees' expectations of privacy unreasonable when an intrusion is by a supervisor, rather than a law enforcement official. Public employees expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation. xxx An office is seldom a private enclave free from entry by supervisors, other employees, and business and personal invitees. Instead, in many cases offices are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work-related visits. Simply put, it is the nature of government offices that others such as fellow employees, supervisors, consensual visitors, and the general public may have frequent access to an individual's office. We agree with JUSTICE SCALIA that

[c]onstitutional protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as employer,

but some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable.

xxxx

Balanced against the substantial government interests in the efficient and proper operation of the workplace are the privacy interests of government employees in their place of work, which, while not insubstantial, are far less than those found at home or in some other contexts. As with the building inspections in Camara, the employer intrusions at issue here involve a relatively limited invasion of employee privacy. Government offices are provided to employees for the sole purpose of facilitating the work of an agency. The employee may avoid exposing personal belongings at work by simply leaving them at home. [emphasis supplied]

For sure, there are specific reasons why employees in general have a decreased expectation of privacy with respect to work-email accounts,[39] including the following:

(a) Employers have legitimate interests in monitoring the workplace;[40]

(b) Employers own the facilities;

(c) Monitoring computer or internet use is a lesser evil compared to other liabilities, such as having copyright infringing material enter the company computers, or having employees send proprietary material to outside parties;

(d)An employer also has an interest in detecting legally incriminating material that may later be subject to electronic discovery;

(e) An employer simply needs to monitor the use of computer resources, from viruses to clogging due to large image or pornography files.[41]

In view of these reasons, the fact that employees may be given individual accounts and password protection is not deemed to create any expectation of privacy.[42]

Similarly, monitoring an employees computer usage may also be impelled by the following legitimate reasons:

(a) To maintain the companys professional reputation and image;

(b) To maintain employee productivity;

(c) To prevent and discourage sexual or other illegal workplace harassment;

(d) To prevent cyberstalking by employees;

(e) To prevent possible defamation liability;

(f) To prevent employee disclosure of trade secrets and other confidential information; and

(g)To avoid copyright and other intellectual property infringement from employees illegally downloading software, etc.[43]

Even without Office Memorandum (OM) No. 10, Series of 2002 being issued by respondent Karina Constantino-David as Chairman of the Civil Service Commission, the employees of the Commission, including the petitioner, have a reduced expectation of privacy in the workplace. The objective of the issuance of OM No. 10 has been only to formally inform and make aware the employees of the Commission about the limitations on their privacy while they are in the workplace and to advise them that the Commission has legitimate reasons to monitor communications made by them, electronically or not. The objectives of OM No. 10 are, needless to state, clear in this regard.[44]

III

Unlike the Majority, I find that the petitioner did not absolutely waive his right to privacy.[45] OM No. 10 contains the following exception, to wit:

Waste of Computer Resources. x x x

x x x x

However, Users are given privileged access to the Internet for knowledge search, information exchange and others. They shall be allowed to use the computer resources for personal purpose after office hours provided that no unlawful materials mentioned in item number 7 and 8 are involved, and no other facilities such as air conditioning unit, video/audio system etc., shall be used except sufficient lights. [emphasis supplied]

Thereby, OM No. 10 has actually given the petitioner privileged access to the Internet for knowledge search, information exchange, and others; and has explicitly allowed him to use the computer resources for personal purposes after office hours. Implicit in such privileged access and permitted personal use was, therefore, that he still had a reasonable expectation of privacy vis--vis whatever communications he created, stored, sent, or received after office hours through using the Commissions computer resources, such that he could rightfully invoke the Constitutional protection to the privacy of his communication and correspondence.

In view of the petitioners expectation of privacy, albeit diminished, I differ from the Majoritys holding that he should be barred from claiming any violation of his right to privacy and right against unreasonable searches and seizures with respect to all the files, official or private, stored in his computer. Although I concede that respondent David had legal authority and good reasons to issue her order to back up the petitioners files as an exercise of her power of supervision, I am not in full accord with the Majoritys holding for the confiscation of all the files stored in the computer. The need to control or prevent activities constitutionally subject to the States regulation may not be filled by means that unnecessarily and broadly sweep and thereby invade the area of protected freedoms.[46]

I hold, instead, that the petitioner is entitled to a reasonable expectation of privacy in respect of the communications created, stored, sent, or received after office hours through the office computer, as to which he must be protected. For that reason, respondent Davids order to back up files should only cover the files corresponding to communications created, stored, sent, or received during office hours. There will be no difficulty in identifying and segregating the files created, stored, sent, or received during and after office hours with the constant advancement and improvement of technology and the presumed expertise of the Commissions information systems analysts.

Nonetheless, my concurrence with the Majority remains as regards the petitioners administrative liability and the seizure of the remainder of the files. I am reiterating, for emphasis, that the diminution of his expectation of privacy in the workplace derived from the nature and purpose of a government office, actual office practice and procedures observed therein, and legitimate regulation.[47] Thus, I vote to uphold the legality of OM No. 10. I hasten to add, to be very clear, that the validity of the seizure of the files should be limited to the need for determining whether or not the petitioner unjustly utilized official resources of the Commission for personal purposes, and should not extend to the reading of the files contents, which would be violative of his right to privacy.

I adhere to the principle that every man is believed to be free. Freedom gears a man to move about unhampered and to speak out from conviction. That is why the right to privacy has earned its worthy place in the Bill of Rights. However, although the right to privacy is referred to as a right to be enjoyed by the people, the State cannot just sit back and stand aside when, in the exercise of his right to privacy, the individual perilously tilts the scales to the detriment of the national interest.

In upholding the validity of OM No. 10, I also suppose that it is not the intention of the Majority to render the Bill of Rights inferior to an administrative rule. Rather, adoption of the balancing of interests test, a concept analogous to the form of scrutiny employed by courts of the United States, has turned out to be applicable especially in the face of the conflict between the individual interest of the petitioner (who asserts his right to privacy) and the Commissions legitimate concern as an arm of the Government tasked to perform official functions. The balancing of interest test has been explained by Professor Kauper,[48] viz:

The theory of balance of interests represents a wholly pragmatic approach to the problem of First Amendment freedom, indeed, to the whole problem of constitutional interpretation. It rests on the theory that is the Courts function in the case before it when it finds public interests served by legislation on the one hand and First Amendment freedoms affected by it on the other, to balance the one against the other and to arrive at a judgment where the greater weight shall be placed. If on balance it appears that the public interest served by restrictive legislation is of such a character that it outweighs the abridgment of freedom, then the Court will find the legislation valid. In short, the balance-of-interests theory rests on the basis that constitutional freedoms are not absolute, not even those stated in the First Amendment, and that they may be abridged to some extent to serve appropriate and important interest. (emphasis supplied.)

The Court has applied the balancing of interest test in Alejano v. Cabuay,[49] where it ruled that the substantial government interest in security and discipline outweighed a detainees right to privacy of communication. The Court has elucidated:

In Hudson v. Palmer, the U.S. Supreme Court ruled that an inmate has no reasonable expectation of privacy inside his cell.  The U.S. Supreme Court explained that prisoners necessarily lose many protections of the Constitution, thus:

However, while persons imprisoned for crime enjoy many protections of the Constitution, it is also clear that imprisonment carries with it the circumscription or loss of many significant rights. These constraints on inmates, and in some cases the complete withdrawal of certain rights, are justified by the considerations underlying our penal system. The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of institutional needs and objectives of prison facilities, chief among which is internal security. Of course, these restrictions or retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction.

The later case of State v. Dunn, citing Hudson v. Palmer, abandoned Palmigiano v. Travisono and made no distinction as to the detainees limited right to privacy.  State v. Dunn noted the considerable jurisprudence in the United States holding that inmate mail may be censored for the furtherance of a substantial government interest such as security or discipline. State v. Dunn declared that if complete censorship is permissible, then the lesser act of opening the mail and reading it is also permissible. We quote State v. Dunn:

[A] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. We are satisfied that society would insist that the prisoners expectation of privacy always yield to what must be considered a paramount interest in institutional security. We believe that it is accepted by our society that [l]oss of freedom of choice and privacy are inherent incidents of confinement.

x x x x

Thus, we do not agree with the Court of Appeals that the opening and reading of the detainees letters in the present case violated the detainees right to privacy of communication.  The letters were not in a sealed envelope.  The inspection of the folded letters is a valid measure as it serves the same purpose as the opening of sealed letters for the inspection of contraband.

x x x x

In assessing the regulations imposed in detention and prison facilities that are alleged to infringe on the constitutional rights of the detainees and convicted prisoners, U.S. courts balance the guarantees of the Constitution with the legitimate concerns of prison administrators. The deferential review of such regulations stems from the principle that:

[s]ubjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. [emphasis supplied]

Much like any other government office, the Commission was established primarily for the purpose of advancing and accomplishing the functions that were the object of its creation.[50] It is imperative, therefore, that its resources be maximized to achieve utmost efficiency in order to ensure the delivery of quality output and services to the public. This commitment to efficiency existed not solely in the interest of good government but also in the interest of letting government agencies control their own information-processing systems.[51] With the State and the people being the Commissions ultimate beneficiaries, it is incumbent upon the Commission to maintain integrity both in fact and in appearance at all times. OM No. 10 was issued to serve as a necessary instrument to safeguard the efficiency and integrity of the Commission, a matter that was of a compelling State interest, and consequently to lay a sound basis for the limited encroachment in the petitioners right to privacy. But, nonetheless, Justice Goldbergs concurring opinion in Griswold v. Connecticut[52] might be instructive:

In a long series of cases this Court has held that where fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling (Bates v. Little Rock, 361 U.S. 516, 524). The law must be shown necessary, and not merely rationally related, to the accomplishment of a permissible state policy. (McLaughlin v. Florida, 379 U.S. 184, 186)

Even assuming that the anonymous tip about the petitioners misuse of the computer proved to be false, i.e., the petitioner did not really engage in lawyering for or assisting parties with interests adverse to that of the Commission, his permitting former colleagues and close friends not officially connected with the Commission to use and store files in his computer,[53] which he admitted, still seriously breached, or, at least, threatened to breach the integrity and efficiency of the Commission as a government office. Compounding his breach was that he was well informed of the limited computer use and privacy policies in OM No. 10, in effect since 2002, prior to the seizure of his files in January of 2007. The Court should not disregard or ignore the breach he was guilty of, for doing so could amount to abetting his misconduct to the detriment of the public who always deserved quality service from the Commission.

IV

As early as in Olmstead v. United States,[54] Justice Brandeis anticipated the impact of technological changes to the right to privacy and significantly observed that -

xxx time works changes, brings into existence new conditions and purposes. Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet. Moreover, in the application of a Constitution, our contemplation cannot be only of what has been but of what may be. The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. xxx

In this era when technological advancement and the emergence of sophisticated methodologies in terms of the science of communication are already inexorable and commonplace, I cannot help but recognize the potential impact of the Majoritys ruling on future policies to govern situations in the public and private workplaces. I apprehend that the ruling about the decreased expectation of privacy in the workplace may generate an unwanted implication for employers in general to henceforth consider themselves authorized, without risking a collision with the Constitutionally-protected right to privacy, to probe and pry into communications made during work hours by their employees through the use of their computers and other digital instruments of communication. Thus, the employers may possibly begin to monitor their employees phone calls, to screen incoming and out-going e-mails, to capture queries made through any of the Internets efficient search engines (like Google), or to censor visited websites (like Yahoo!, Facebook or Twitter) in the avowed interest of ensuring productivity and supervising use of business resources. That will be unfortunate.

The apprehension may ripen into a real concern about the possibility of abuse on the part of the employers. I propose, therefore, that the ruling herein be made pro hac vice, for there may be situations not presently envisioned that may be held, wrongly or rightly, as covered by the ruling, like when the instrument of communication used is property not owned by the employer although used during work hours.

As a final note, let me express the sentiment that an employee, regardless of his position and of the sector he works for, is not a slave of trade expected to devote his full time and attention to the job. Although the interests of capital or public service do merit protection, a recognition of the limitations of man as a being needful of some extent of rest, and of some degree of personal space even during work hours, is most essential in order to fully maximize the potential by which his services was obtained in the first place. The job should not own him the whole time he is in the workplace. Even while he remains in the workplace, he must be allowed to preserve his own identity, to maintain an inner self, to safeguard his beliefs, and to keep certain thoughts, judgments and desires hidden. Otherwise put, he does not surrender his entire expectation of privacy totally upon entering the gates of the workplace. Unreasonable intrusion into his right to be let alone should still be zealously guarded against, albeit he may have waived at some point a greater part of that expectation. At any rate, whenever the interest of the employer and the employee should clash, the assistance of the courts may be sought to define the limits of intrusion or to balance interests.

ACCORDINGLY, I vote to deny the petition, subject to the qualification that the petitioners right to privacy should be respected as to the files created, stored, sent or received after office hours; and to the further qualification that the decision be held to apply pro hac vice.

LUCAS P. BERSAMIN

Associate Justice

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[1] 4 Harvard Law Review 193.

[2] Richards, Neil M. and Daniel J. Solove, Privacys Other Path: Recovering the Law of Confidentiality, The Georgetown Law Journal, Vol. 96 (2007), pp. 128-129.

[3] Supra, note 1, p. 198.

[4] Id., p. 195; Warren and Brandeis adopted the right to be let alone language from Judge Thomas M. Cooleys 1888 treatise The Law of Torts 29 (2d ed. 1888).

[5] Richards and Solove, op. cit., p. 125.

[6] 277 U.S. 438 (1928).

[7] 48 California Law Review, No. 3 (August 1960), p. 383.

[8] Id., p. 389.

[9] Id.; see also Richards and Solove, op. cit., pp. 148-149.

[10] Restatement of Torts 2d 652B (1977) (Prosser was also a reporter of the Second Restatement of Torts).

[11] Id., 652D-652E (1977).

[12] Id., 652C (1977.)

[13] 429 U.S. 589 (1977).

[14] Gilbert, Helen L., Minors Constitutional Right to Informational Privacy, The University of Chicago Law Journal (2007), pp. 1385-1386.

[15] Id., p. 1386.

[16] 638 F2d 570 (3d Cir 1980).

[17] Id., p. 578.

[18] 262 U.S. 390 (1923).

[19] The criminal information was based upon An act relating to the teaching of foreign languages in the State of Nebraska," approved April 9, 1919, pertinent portions of which provide:

Section 1. No person, individually or as a teacher, shall, in any private, denominational, parochial or public school, teach any subject to any person in any language other than the English language.

Sec. 2. Languages, other than the English language, may be taught as languages only after a pupil shall have attained and successfully passed the eighth grade as evidenced by a certificate of graduation issued by the county superintendent of the county in which the child resides.

Sec. 3. Any person who violates any of the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction, shall be subject to a fine of not less than twenty-five dollars ($25), nor more than one hundred dollars ($100) or be confined in the county jail for any period not exceeding thirty days for each offense.

Sec. 4. Whereas, an emergency exists, this act shall be in force from and after its passage and approval.

[20] 381 U.S. 479 (1965).

[21] 410 U.S. 113 (1973)

[22] A.M. No, P-02-1651, August 4, 2003, 408 SCRA 1.

[23] Bernas, Joaquin G., The 1987 Constitution of the Philippines, 1986 Ed., p. 191.

[24] 410 U.S. 113 (1973).

[25] Ninth Amendment of the United States Constitution.

[26] G.R. No. L-20387, 22 SCRA 424, January 31, 1968.

[27] Id., citing Public Utilities Commission v. Pollak, 343 U. S. 451, 467 (1952).

[28] 277 U.S. 438 (1928).

[29] 389 U.S, 347, 350-351 (1967).

[30] The transcript of Judge Schneiders oral argument in part provides:

Mr. Schneider: x x x We think and respectfully submit to the Court that whether or not, a telephone booth or any area is constitutionally protected, is the wrong initial inquiry.

We do not believe that the question should be determined as to whether or not, let's say you have an invasion of a constitutionally protected area, that shouldn't be the initial inquiry, but rather that probably should be the conclusion that is reached after the application of a test such as that we propose are similar test.

Now, we have proposed in our brief and there's nothing magical or ingenious about our test.

It's an objective test which stresses the rule of reason, we think.

The test really asks or opposes the question, Would a reasonable person objectively looking at the communication setting, the situation and location of a communicator and communicatee -- would he reasonably believe that that communication was intended to be confidential?

We think that in applying this test there are several criteria that can be used.

Justice William J. Brennan: So that parabolic mic on the two people conversing in the field a mile away might --

Mr. Schneider: Absolutely.

x x x

We think that if a confidential communication was intended and all the other aspects of confidentiality are present, then it makes no difference whether you're in an open field or in the privacy of your own home.

We would submit to the Court that there are factors present which would tend to give the Courts, the trial courts, and ultimately this Court, some guidelines as to whether or not objectively speaking, the communication was intended to be private.

x x x

Mr. Schneider: x x x

I believe the following factors at least should be included in an analysis of this problem.

One, what is the physical location?

In other words, where did the conversation take place?

Was it in a situation where numerous persons were present or whether just a few people present?

I think that bears on the issue.

I think the tone of voice bears on the issue.

I think that you can have a communication for example in your house which almost everyone would see all things being equal would be confidential.

However, if you use a loud enough voice, I think you destroy your own confidentiality.

x x x

Mr. Schneider: x x x

We feel that the Fourth Amendment and at the Court's decisions recently for a long time, I believe, have indicated that the right to privacy is what's protected by the Fourth Amendment.

We feel that the right to privacy follows the individual.

And that whether or not, he's in a space when closed by four walls, and a ceiling, and a roof, or an auto-mobile, or any other physical location, is not determined of the issue of whether or not the communication can ultimately be declared confidential.

x x x

Justice John M. Harlan: Could you state this Court tested this as you propose?

Mr. Schneider: Yes, we propose a test using in a way it's not too dissimilar from a tort, that tort reasonable man test.

We're suggesting that what should be used is the communication setting should be observed and those items that should be considered are the tone of voice, the actual physical location where the conversation took place, the activities on the part of the officer.

When all those things are considered, we would ask that the test be applied as to whether or not a third person objectively looking at the entire scene could reasonably interpret and could reasonably say that the communicator intended his communication to be confidential. x x x (emphasis supplied.)

[31] Winn, Peter, Katz and the Origins of the Reasonable Expectation of Privacy Test, 2008.

[32] Id.; see the concurring opinion of Justice Harlan in Katz v. United States, 389 U.S, 347, 350-351 (1967).

[33] Concurring opinion of Justice Harlan in Katz v. United States, supra.

[34] Katz v. United States, supra; writing for the majority, Justice Stewart made the following pronouncement:

xxx. In the first place, the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase constitutionally protected area. Secondly, the Fourth Amendment cannot be translated into a general constitutional right to privacy. That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. But the protection of a persons general right to privacy his right to be let alone by other people is, like the protection of his property and of his very life, left largely to the law of the individual States.

[35] 392 U.S. 364 (1968).

[36] Justice Harlan delivered the opinion of the Court.

[37] In Whalen v. Roe, supra, note 13, p. 599, the Court advanced the principle that the right to information privacy has two aspects: (1) the right of an individual not to have private information about himself disclosed; and (2) the right of an individual to live freely without surveillance and intrusion.

[38] 480 U.S. 709, 715-17 (1987).

[39] Tan, Oscar Franklin B., Articulating the Complete Philippine Right to Privacy in Constitutional and Civil Law: A Tribute to Chief Justice Fernando and Justice Carpio, Philippine Law Journal, Vol. 82, No. 4 (2008), pp. 228-229.

[40] Id., citing Michael Rustad and Thomas Koenig, Cybertorts and Legal Lag: An Empirical Analysis, 13 S. Cal. Interdisc. L.J. 77, 95 (2003).

[41] Id., citing Matthew Finkin, Information Technology and Workers Privacy: The United States Law, 23 COMP. LAB. L. & POLY J. 471, 474 (2002).

[42] Supra Note 6, p. 228.

[43] Ciocchetti, Corey A., Monitoring Employee Email: Efficient Workplaces vs. Employee Privacy, <http://www.law.duke.edu/journals/dltr/articles/2001dltr0026.html#8.> Last visited on June 14, 2011; citing Terrence Lewis, Pittsburgh Business Times, Monitoring Employee E-Mail: Avoid stalking and Illegal Internet Conduct) <http://www.pittsburgh.bcentral.com/pittsburgh/stories/2000/05/22/focus6.html>.

[44] Rollo, p. 98.

O.M. No. 10 provides:

OBJECTIVES

Specifically, the guidelines aim to:

Protect confidential, proprietary information of the CSC from theft or unauthorized disclosure to third parties;

Optimize the use of the CSCs Computer Resources as what they are officially intended for; and

Reduce, and possibly eliminate potential legal liability to employees and third parties.

[45] Id., p. 99; O.M. No. 10 states:

Waiver of privacy rights. Users expressly waive any right to privacy in anything they create, store, send, or receive on the computer through the Internet or any other computer network. Users understand that the CSC may use human or automated means to monitor the use of its Computer Resources.

[46] Griswold v. Connecticut, supra, note 20, citing NAACP v. Alabama, 377 U.S. 288 (1964).

[47] OConnor v. Ortega, 25 480 U.S. 709, 715-17 (1987).

[48] Cited in Gonzales v. COMELEC, G.R. No. L-27833, April 18, 1969, 27 SCRA 835, 899.

[49] G.R. No. 160792, August 25, 2005, 468 SCRA 188, 211-214.

[50] The Civil Service Commission was conferred the status of a department by Republic Act No. 2260 as amended and elevated to a constitutional body by the 1973 Constitution. It was reorganized under PD No. 181 dated September 24, 1972, and again reorganized under Executive Order no. 181 dated November 21, 1986. With the new Administrative Code of 1987 (EO 292), the Commission is constitutionally mandated to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the Civil Service. Also, as the central human resource institution and as adviser to the President on personnel management of the Philippine Government, the Civil Service Commission exists to be the forerunner in (1) upholding merit, justice and fairness; (2) building competence, expertise and character; (3) ensuring delivery of quality public services and products; (4) institutionalizing workplace harmony and wellness; and (5) fostering partnership and collaboration. www.csc.gov.ph/mandate and mission. Last visited on July 13, 2011.

[51] Regan, Priscilla M., Legislating Privacy (Technology, Social Values, and Public Policy), The University of North Carolina Press, 1995, p. 186.

[52] 381 U.S. 479 (1965).

[53] Rollo, p. 96-97; Paragraphs 4 and 5 of the Affidavit executed by Ponciano R. Solosa narrated the following:

4. That I have also requested Ricky who is like a son to me having known him since he was eighteen (18) years old, to keep my personal files for safekeeping in his computer which I understand was issued thru Memorandum Receipt and therefore for his personal use;

5. That this affidavit is issued to attest to the fact that Mr. Pollo has nothing to do with my files which I have entrusted to him for safekeeping including my personal pleadings with the LTO and PUP, of which I have been the counsel on record and caused the preparation and signed thereof accordingly.

Also, paragraph 5 of the Affidavit executed by Eric N. Estrellado mentioned the following:

8. That I deny what was indicated in CSC Resolution No. 07-0382 under item 13 and 14 that Ricky Pollo is earning out of practicing or aiding people undersigned included, the truth of the matter the statement made Epal, kulang ang bayad mo., was a private joke between me and my counsel and friend Atty. Solosa. That item 14 was my billing statement with the law firm of solosa [sic] and de Guzman. Ricky has nothing to do with it. These private files but was intruded and confiscated for unknown reasons by people who are not privy to our private affairs with my counsel. That these are in the CPU of Ricky, as he would request as in fact Atty. Solosa himself requested Ricky to keep files thereof thru flash drive or disk drive;

[54] Dissenting Opinion of Justice Brandeis, Olmstead v. United States, supra Note 6.