INCOGNITO | Why suspending the Data Privacy Act during this pandemic is wrong

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Sergio Ortiz Luis Jr., president of the Philippine Exporters Confederation, announced recently that the business sector — represented by his organization, alongside the Employers Confederation of the Philippines, the Philippine Chamber of Commerce and Industry, and the Philippine Silk Road International Chamber of Commerce — has submitted a joint letter to the Inter-Agency Task Force for the Management of Emerging Infectious Diseases (IATF) calling for, among other things, the temporary suspension of the Data Privacy Act (DPA) as part of the government’s efforts to address the Covid-19 pandemic.

Their reason? Contact tracing is too expensive. With the DPA and patient confidentiality clauses out of the way, they surmise that people will just walk into health facilities and get tested (and confined, too). The P5-billion budget the government has set aside for contact tracing would no longer be needed and could then be used for something else — presumably something more worthwhile in the eyes of businesses.

The suggestion is wrong in so many ways, ill-conceived, shortsighted, and ultimately irresponsible. Here are a few reasons:

  • It has a wrong premise. The call reduces the whole concept of data privacy (or data protection) to confidentiality. It is so much more than that, and so is the Data Privacy Act. Even readily accessible personal data enjoy the protective measures offered by the law, such as the prohibition against unauthorized use.
  • It is excessive. Even on the assumption that patient confidentiality is worth sacrificing at this time, having the entire law suspended is too much. We are often inundated with news about personal data being misused by government offices and private sector entities. And this is while the DPA is very much in effect. Putting the law away — even for just a while — is like giving fraudsters and criminals a free pass during an already trying period.
  • It is not supported by facts. No evidence is being offered to prove that taking away data privacy will result in people turning themselves in to public health authorities for testing or confinement. If news reports about people associated with the disease getting roughed up are to be believed, such a measure would in fact give people more reason to go into hiding.
  • It fails to recognize prevailing inequalities. In making the call, the business sector takes a simplistic view of the current crisis and does not recognize it for the complex bag of issues it actually is. Each person who is a possible Covid-19 case can have different reasons for not coming forward. It’s not just because they think the government doesn’t have “nice” quarantine centers, or they are ashamed of being sick. To reiterate, people have gotten hurt just because they are suspected of having the disease. That is one valid reason for wanting confidentiality. When businesses refer to instances where infected government officials and celebrities have come out in the open as proof that no harm will come to Covid-19 patients, they are being extremely naïve. The overwhelming majority of the population does not have the clout or means to access the kind of comfort and protection their affluent, well-connected, or more popular counterparts enjoy.
  • It puts a price tag on human rights. There is a reason why we describe human rights as basic or fundamental. We have them by default, regardless of who we are and our circumstances. And while States may subject them to reasonable limits or restrictions, the financial cost of upholding them is not one of those. In this case, P5 billion is not and should never be a valid justification. Indeed, wouldn’t it be so much easier (and less costly) for law enforcement authorities if they can simply listen in to our phone calls, go over our bank accounts, or barge into our homes without a warrant in order to check if we are committing any crime? We would need fewer police officers to roam our streets! Should we be demanding for such a change, too, if we are all about cutting costs?
  • Human rights are supposed to make the government work harder. The concept of human rights was born and is upheld today because the world has seen first-hand what happens to people when we don’t set limits to what governments can do with their powers. With almost unlimited resources at their disposal, governments can do a lot of good, but also cause a lot of harm. Today, with human rights, there is a framework through which we can rein in their potential abuses. It may take the police a few more steps to catch a criminal, and the government as a whole, a long process before it can put one in jail, but that is the cost of making sure justice is served and no innocent person is sent to prison. The system is far from perfect, but the alternative is certainly not to do away with it. Thus, if data privacy makes contact tracing necessary, there is a perfectly good reason behind it.
  • It is not that simple to do — if it is at all possible. The Executive branch of the government has the duty to implement the DPA, just like any other law. It cannot just wake up one day and choose not to enforce it. Congress can repeal or amend the DPA, but there is a proper process for that. The courts may also be asked to intervene and put a stop to the implementation of the law, but that too has a process that must be played out.

To its credit, the National Privacy Commission (NPC) was quick to reject the proposal, calling it “counterproductive” and “anti-poor”. It correctly pointed out that there is no evidence to support the belief that publicly naming individuals with an infectious disease, such as Covid-19, serves public health interests. More often than not, it has caused even more harm to people and their communities.

The Mozilla Philippines Community has also stepped forward to defend the DPA. Like the NPC, it noted that the country’s laws “have enough provisions to allow the government to effectively conduct contact tracing, treat patients, face this [Covid-19] threat while securing the personal data and dignity of the Filipino people.” In a brief statement, it declared its support for the stand of the NPC.

Both are right and more people need to echo their sentiments.

In their joint letter, businesses try to downplay the impact of their proposal by suggesting that it is nothing more than just another way for the government to take away people’s rights in the interest of saving lives. If you think there is a familiar ring to it, that is because it is the same narrative this administration has been trying to sell the world when it justifies its bloody war against illegal drugs: to save lives, we need to give up our rights.

The world has been wise enough not to buy into that rhetoric. It’s a false dilemma. Businesses should know better than to sell us what we already know are defective wares.

The author is a lawyer, artist, photographer, and privacy advocate

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