DECISIONAL PRIVACY V. INFORMATIONAL PRIVACY.

 Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample safeguards against crossing legal boundaries and invading the people’s right to privacy. The concern is understandable. Indeed, the Court recognizes in Morfe v. Mutuc^[88] that certain constitutional guarantees work together to create zones of privacy wherein governmental powers may not intrude, and that there exists an independent constitutional right of privacy. Such right to be left alone has been regarded as the beginning of all freedoms.^[89]

But that right is not unqualified. In Whalen v. Roe,^[90] the United States Supreme Court classified privacy into two categories: decisional privacy and informational privacy. Decisional privacy involves the right to independence in making certain important decisions, while informational privacy refers to the interest in avoiding disclosure of personal matters. It is the latter right—the right to informational privacy—that those who oppose government collection or recording of traffic data in real-time seek to protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the right to live freely without surveillance and intrusion.^[91] In determining whether or not a matter is entitled to the right to privacy, this Court has laid down a two-fold test. The first is a subjective test, where one claiming the right must have an actual or legitimate expectation of privacy over a certain matter. The second is an objective test, where his or her expectation of privacy must be one society is prepared to accept as objectively reasonable.^[92]

Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular person or group, petitioners’ challenge to Section 12 applies to all information and communications technology (ICT) users, meaning the large segment of the population who use all sorts of electronic devices to communicate with one another. Consequently, the expectation of privacy is to be measured from the general public’s point of view. Without reasonable expectation of privacy, the right to it would have no basis in fact.