G.R. No.

71410 November 25, 1986

JOSEFINO S. ROAN, petitioner,

vs.

THE HONORABLE ROMULO T. GONZALES, PRESIDING JUDGE, REGIONAL TRIAL COURT OF MARINDUQUE, BRANCH
XXXVIII; THE PROVINCIAL FISCAL OF MARINDUQUE; THE PROVINCIAL COMMANDER, PC-INP MARINDUQUE,
respondents.

CRUZ, J:

Once again we are asked to annul a search warrant on the ground that it violates the Constitution. As we can do no less
if we are to be true to the mandate of the fundamental law, we do annul.

One of the most precious rights of the citizen in a free society is the right to be left alone in the privacy of his own house.
That right has ancient roots, dating back through the mists of history to the mighty English kings in their fortresses of
power. Even then, the lowly subject had his own castle where he was monarch of all he surveyed. This was his humble
cottage from which he could bar his sovereign lord and all the forces of the Crown.

That right has endured through the ages albeit only in a few libertarian regimes. Their number, regrettably, continues to
dwindle against the onslaughts of authoritarianism. We are among the fortunate few, able again to enjoy this right after
the ordeal of the past despotism. We must cherish and protect it all the more now because it is like a prodigal son
returning.

That right is guaranteed in the following provisions of Article IV of the 1973 Constitution:

SEC. 3. 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 not be violated, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be
authorized by law, 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.

SEC. 4. (1) The privacy of communication and cor- respondence shag be inviolable except upon lawful order of the
court, or when public safety and order require otherwise.

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

Invoking these provisions, the petitioner claims he was the victim of an illegal search and seizure conducted by the
military authorities. The articles seized from him are sought to be used as evidence in his prosecution for illegal
possession of firearms. He asks that their admission be temporarily restrained (which we have) 1 and thereafter
permanently enjoined.

The challenged search warrant was issued by the respondent judge on May 10, 1984.2 The petitioner's house was
searched two days later but none of the articles listed in the warrant was discovered. 3 However, the officers conducting
the search found in the premises one Colt Magnum revolver and eighteen live bullets which they confiscated. They are
now the bases of the charge against the petitioner. 4

To be valid, a search warrant must be supported by probable cause to be determined by the judge or some other
authorized officer after examining the complainant and the witnesses he may produce. No less important, there must be
a specific description of the place to be searched and the things to be seized, to prevent arbitrary and indiscriminate use
of the warrant.5
Probable cause was described by Justice Escolin in Burgos v. Chief of Staff 6 as referring to "such facts and circumstances
which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the
objects sought in connection with the offense are in the place sought to be searched." As held in a long line of decisions,
the probable cause must refer to only one specific offense.7

The inclusion of the requirement for the "examination under oath or affirmation of the complainant and the witnesses
he may produce" was a refinement proposed by Delegate Vicente J. Francisco in the1934 Constitutional Convention. His
purpose was the strengthening of the guaranty against unreasonable searches and seizures. Although the condition did
not appear in the corresponding provision of the federa Constitution of the United States which served as our model it
was then already embodied in the Code of Criminal Procedure. Nevertheless, Delegate Jose P. Laurel, Chairman of the
Committee on the Bill of Rights of that body, readily accepted the proposal and it was thereafter, following a brief
debate, approved by the Convention.8

Implementing this requirement, the Rules of Court provided in what was then Rule 126:

SEC. 4. Examination of the applicant. — The municipal or city judge must, before issuing the warrant, personally
examine on oath or affirmation the complainant and any witnesses he may produce and take their depositions in
writing, and attach them to the record, in addition to any affidavits presented to him.

The petitioner claims that no depositions were taken by the respondent judge in accordance with the above rule, but
this is not entirely true. As a matter of fact, depositions were taken of the complainant's two witnesses in addition to the
affidavit executed by them. 9 It is correct to say, however, that the complainant himself was not subjected to a similar
interrogation.

Commenting on this matter, the respondent judge declared:

The truth is that when PC Capt. Mauro P. Quinosa personally filed his application for a search warrant on May 10, 1984,
he appeared before me in the company of his two (2) witnesses, Esmael Morada and Jesus Tohilida, both of whom
likewise presented to me their respective affidavits taken by Pat. Josue V. Lining, a police investigator assigned to the
PC-INP command at Camp Col. Maximo Abad. As the application was not yet subscribed and sworn to, I proceeded to
examine Captain Quillosa on the contents thereof to ascertain, among others, if he knew and understood the same.
Afterwards, he subscribed and swore to the same before me. 10

By his own account, an he did was question Captain Quillosa on the contents of his affidavit only "to ascertain, among
others, if he knew and understood the same," and only because "the application was not yet subscribed and swom to."
The suggestion is that he would not have asked any questions at all if the affidavit had already been completed when it
was submitted to him. In any case, he did not ask his own searching questions. He limited himself to the contents of the
affidavit. He did not take the applicant's deposition in writing and attach them to the record, together with the affidavit
presented to him.

As this Court held in Mata v. Bayona: 11

Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take
depositions in writing of the complainant and the witnesses he niay produce and attach them to the record. Such
written deposition is necessary in order that the Judge may be able to properly determine the existence or non-
existence of the probable cause, to hold liable for perjury the person giving it if it wifl be found later that his declarations
are false.
We, therefore, hold that the search warrant is tainted with illegality by the failure of the Judge to conform with the
essential requisites of taking the depositions in writing and attaching them to the record, rendering the search warrant
invalid.

The respondent judge also declared that he "saw no need to have applicant Quillosa's deposition taken considering that
he was applying for a search warrant on the basis of the information provided by the aforenamed witnesses whose
depositions as aforementioned had already been taken by the undersigned." 12

In other words, the applicant was asking for the issuance of the search warrant on the basis of mere hearsay and not of
information personally known to him, as required by settled jurisprudence." 13 The rationale of the requirement, of
course, is to provide a ground for a prosecution for perjury in case the applicant's declarations are found to be false. His
application, standing alone, was insufficient to justify the issuance of the warrant sought. It was therefore necessary for
the witnesses themselves, by their own personal information, to establish the apphcant's claims. 14

Even assuming then that it would have sufficed to take the depositions only of the witnesses and not of the applicant
himself, there is still the question of the sufficiency of their depositions.

It is axiomatic that the examination must be probing and exhaustive, not merely routinary or pro-forma, if the claimed
probable cause is to be established. The examining magistrate must not simply rehash the contents of the affidavit but
must make his own inquiry on the intent and justification of the application. 15

A study of the depositions taken from witnesses Esmael Morada and Jesus Tohilida, who both claimed to be
"intelligence informers," shows that they were in the main a mere restatement of their allegations in their affidavits,
except that they were made in the form of answers to the questions put to them by the respondent judge. Significantly,
the meaningful remark made by Tohilida that they were suspicious of the petitioner because he was a follower of the
opposition candidate in the forthcoming election (a "Lecarista") 16 did not excite the respondent judge's own suspicions.
This should have put him on guard as to the motivations of the witnesses and alerted him to possible misrepresentations
from them.

The respondent judge almost unquestioningly received the witnesses' statement that they saw eight men deliver arms
to the petitioner in his house on May 2, 1984. 17 This was supposedly done overtly, and Tohilida said he saw everything
through an open window of the house while he was near the gate. 18 He could even positively say that six of the
weapons were.45 caliber pistols and two were.38 caliber revolvers. 19

One may well wonder why it did not occur to the respondent judge to ask how the witness could be so certain even as
to the caliber of the guns, or how far he was from the window, or whether it was on the first floor or a second floor, or
why his presence was not noticed at all, or if the acts related were really done openly, in the full view of the witnesses,
considering that these acts were against the law. These would have been judicious questions but they were injudiciously
omitted. Instead, the declarations of the witnesses were readily accepted and the search warrant sought was issued
forthwith.

The above-discussed defects have rendered the search warrant invalid. Nonetheless, the Solicitor General argues that
whatever defect there was, was waived when the petitioner voluntarily submitted to the search and manifested his
conformity in writing. 20

We do not agree. What we see here is pressure exerted by the military authorities, who practically coerced the
petitioner to sign the supposed waiver as a guaranty against a possible challenge later to the validity of the search they
were conducting. Confronted with the armed presence of the military and the presumptive authority of a judicial writ,
the petitioner had no choice but to submit. This was not, as we held in a previous case,21 the manifestation merely of
our traditional Filipino hospitality and respect for authority. Given the repressive atmosphere of the Marcos regime,
there was here, as we see it, an intimidation that the petitioner could not resist.

The respondents also argue that the Colt Magnum pistol and the eighteen have bullets seized from the petitioner were
illegal per se and therefore could have been taken by the military authorities even without a warrant. Possession of the
said articles, it is urged, was violative of P.D. 1866 and considered malum prohibitum. Hence, the Wegal articles could be
taken even without a warrant.

Prohibited articles may be seized but only as long as the search is valid. In this case, it was not because: 1) there was no
valid search warrant; and 2) absent such a warrant, the right thereto was not validly waived by the petitioner. In short,
the military officers who entered the petitioner's premises had no right to be there and therefore had no right either to
seize the pistol and bullets.

It does not follow that because an offense is malum prohibitum, the subject thereof is necessarily illegal per se. Motive
is immaterial in mala prohibita, but the subjects of this kind of offense may not be summarily seized simply because they
are prohibited. A search warrant is still necessary. If the rule were otherwise, then the military authorities could have
just entered the premises and looked for the guns reportedly kept by the petitioner without bothering to first secure a
search warrant. The fact that they did bother to do so indicates that they themselves recognized the necessity of such a
warrant for the seizure of the weapons the petitioner was suspected of possessing.

It is true that there are certain instances when a search may be validly made without warrant and articles may be taken
validly as a result of that search. For example, a warrantless search may be made incidental to a lawful arrest,22 as when
the person being arrested is frished for weapons he may otherwise be able to use against the arresting officer. Motor
cars may be inspected at borders to prevent smuggling of aliens and contraband 23 and even in the interior upon a
showing of probable cause. 24 Vessels and aircraft are also traditionally removed from the operation of the rule because
of their mobility and their relative ease in fleeing the state's jurisdiction. 25 The individual may knowingly agree to be
searched or waive objections to an illegal search. 26 And it has also been held that prohibited articles may be taken
without warrant if they are open to eye and hand and the peace officer comes upon them inadvertently. 27

Clearly, though, the instant case does not come under any of the accepted exceptions. The respondents cannot even
claim that they stumbled upon the pistol and bullets for the fact is that these things were deliberately sought and were
not in plain view when they were taken. Hence, the rule having been violated and no exception being applicable, the
conclusion is that the petitioner's pistol and bullets were confiscated illegally and therefore are protected by the
exclusionary principle.

Stonehill v. Diokno established this rule which was later expressly affirmed in the 1973 Constitution. While conceding
that there may be occasions when the criminal might be allowed to go free because "the constable has blundered,"
Chief Justice Concepcion observed that the exclusionary rule was nonetheless "the only practical means of enforcing the
constitutional injunction" against abuse. The decision cited Judge Learned Hand's justification that "only in case the
prosecution which itself controls the seizing officials, know that it cannot profit by their wrong, will the wrong be
repressed. "

The pistol and bullets cannot, of course, be used as evidence against the petitioner in the criminal action against him for
illegal possession of firearms. Pending resolution of that case, however, the said articles must remain in custodia legis.

Finally, it is true that the petitioner should have, before coming to this Court, filed a motion for the quashal of the search
warrant by the respondent judge in accordance with the normal procedure. But as we said and did in Burgos, "this
procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the
constitutional issues raised. 28
WHEREFORE, Search Warrant No. 1-84 issued by the respondent judge on May 10, 1984, is hereby declared null and
void and accordingly set aside. Our restraining order of August 6,1985, is made permanent. No costs.

SO ORDERED.

Olmstead v. United States

Nos. 493, 532 and 533

Argued February 20, 21, 1928

Decided June 4, 1928

277 U.S. 438

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

1. Use in evidence in a criminal trial in a federal court of an incriminating telephone conversation voluntarily conducted
by the accused and secretly overheard from a tapped wire by a government officer does not compel the accused to be a
witness against himself in violation of the Fifth Amendment. P. 277 U. S. 462.

2. Evidence of a conspiracy to violate the Prohibition Act was obtained by government officers by secretly tapping the
lines of a telephone company connected with the chief office and some of the residences of the conspirators, and thus
clandestinely overhearing and recording their telephonic conversations concerning the conspiracy and in aid of its
execution. The tapping connections were made in the basement of a large office building and on public streets, and no
trespass was committed upon any property of the defendants. Held, that the obtaining of the evidence and its use at the
trial did not violate the Fourth Amendment. Pp. 457- 277 U. S. 466.

3. The principle of liberal construction applied to the Amendment to effect its purpose in the interest of liberty will not
justify enlarging it beyond the possible practical meaning of "persons, houses, papers, and effects," or so applying
"searches and seizures" as to forbid hearing or sight. P. 277 U. S. 465.

4. The policy of protecting the secrecy of telephone messages by making them, when intercepted, inadmissible as
evidence in federal criminal trials may be adopted by Congress through legislation, but it is not for the courts to adopt it
by attributing an enlarged and unusual meaning to the Fourth Amendment. P. 277 U. S. 465.

5. A provision in an order granting certiorari limiting the review to a single specific question does not deprive the Court
of jurisdiction to decide other questions presented by the record. P. 277 U. S. 466.
6. The common law of evidence having prevailed in the State of Washington since a time antedating her transformation
from a

Page 277 U. S. 439

Territory to a State, those rule apply in the trials of criminal cases in the federal courts sitting in that State. P. 277 U. S.
466.

7. Under the common law, the admissibility of evidence is not affected by the fact of its having been obtained illegally. P.
277 U. S. 467.

8. The rule excluding from the federal Courts evidence of crime procured by government officers by methods forbidden
by the Fourth and Fifth Amendments is an exception to the common law rule. Id.

9. Without the sanction of an Act of Congress, federal courts have no discretion to exclude evidence, the admission of
which is not unconstitutional, because it was unethically procured. P. 277 U. S. 468.

10. The statute of Washington, adopted in 1909, making the interception of telephone messages a misdemeanor cannot
affect the rules of evidence applicable in federal courts in criminal cases. Id.

19 F. (2d) 842, 848, 850, affirmed.

CERTIORARI, 276 U.S. 609, to judgments of the Circuit Court of Appeals affirming convictions of conspiracy to violate the
Prohibition Act. See 5 F.2d 712; 7 F.2d 756, 760. The order granting certiorari confined the hearing to the question
whether the use in evidence of private telephone conversations, intercepted by means of wiretapping, violated the
Fourth and Fifth Amendments.

Page 277 U. S. 455

MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

These cases are here by certiorari from the Circuit Court of Appeals for the Ninth Circuit. 19 F.2d 842 and 850. The
petition in No. 493 was filed August 30, 1927; in Nos. 532 and 533, September 9, 1927. They were granted with the
distinct limitation that the hearing should be confined to the single question whether the use of evidence of private
telephone conversations between the defendants and others, intercepted by means of wiretapping amounted to a
violation of the Fourth and Fifth Amendments.

The petitioners were convicted in the District Court for the Western District of Washington of a conspiracy to violate the
National Prohibition Act by unlawfully possessing, transporting and importing intoxicating liquors and maintaining
nuisances, and by selling intoxicating liquors. Seventy-two others in addition to the petitioners were indicted. Some
were not apprehended, some were acquitted, and others pleaded guilty.

The evidence in the records discloses a conspiracy of amazing magnitude to import, possess and sell liquor unlawfully.
Page 277 U. S. 456

It involved the employment of not less than fifty persons, of two seagoing vessels for the transportation of liquor to
British Columbia, of smaller vessels for coastwise transportation to the State of Washington, the purchase and use of a
ranch beyond the suburban limits of Seattle, with a large underground cache for storage and a number of smaller caches
in that city, the maintenance of a central office manned with operators, the employment of executives, salesmen,
deliverymen, dispatchers, scouts, bookkeepers, collectors and an attorney. In a bad month, sales amounted to $176,000;
the aggregate for a year must have exceeded two millions of dollars.

Olmstead was the leading conspirator and the general manager of the business. He made a contribution of $10,000 to
the capital; eleven others contributed $1,000 each. The profits were divided one-half to Olmstead and the remainder to
the other eleven. Of the several offices in Seattle, the chief one was in a large office building. In this there were three
telephones on three different lines. There were telephones in an office of the manager in his own home, at the homes of
his associates, and at other places in the city. Communication was had frequently with Vancouver, British Columbia.
Times were fixed for the deliveries of the "stuff," to places along Puget Sound near Seattle, and from there the liquor
was removed and deposited in the caches already referred to

One of the chief men was always on duty at the main office to receive orders by telephones and to direct their filling by
a corps of men stationed in another room -- the " bull pen." The call numbers of the telephones were given to those
known to be likely customers. At times, the sales amounted to 200 cases of liquor per day.

The information which led to the discovery of the conspiracy and its nature and extent was largely obtained by
intercepting messages on the telephones of the conspirators by four federal prohibition officers. Small

Page 277 U. S. 457

wires were inserted along the ordinary telephone wires from the residences of four of the petitioners and those leading
from the chief office. The insertions were made without trespass upon any property of the defendants. They were made
in the basement of the large office building. The taps from house lines were made in the streets near the houses.

The gathering of evidence continued for many months. Conversations of the conspirators, of which refreshing
stenographic notes were currently made, were testified to by the government witnesses. They revealed the large
business transactions of the partners and their subordinates. Men at the wires heard the orders given for liquor by
customers and the acceptances; they became auditors of the conversations between the partners. All this disclosed the
conspiracy charged in the indictment. Many of the intercepted conversations were not merely reports, but parts of the
criminal acts. The evidence also disclosed the difficulties to which the conspirators were subjected, the reported news of
the capture of vessels, the arrest of their men and the seizure of cases of liquor in garages and other places. It showed
the dealing by Olmstead, the chief conspirator, with members of the Seattle police, the messages to them which secured
the release of arrested members of the conspiracy, and also direct promises to officers of payments as soon as
opportunity offered.

The Fourth Amendment provides --

"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and
seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation
and particularly describing the place to be searched and the persons or things to be seized."
And the Fifth: "No person . . . shall be compelled, in any criminal case, to be a witness against himself."

Page 277 U. S. 458

It will be helpful to consider the chief cases in this Court which bear upon the construction of these Amendments.

Boyd v. United States, 116 U. S. 616, was an information filed by the District Attorney in the federal court in a cause of
seizure and forfeiture against thirty-five cases of plate glass, which charged that the owner and importer, with intent to
defraud the revenue, made an entry of the imported merchandise by means of a fraudulent or false invoice. It became
important to show the quantity and value of glass contained in twenty-nine cases previously imported. The fifth section
of the Act of June 22, 1874, provided that, in cases not criminal under the revenue laws, the United States Attorney,
whenever he thought an invoice belonging to the defendant would tend to prove any allegation made by the United
States, might, by a written motion describing the invoice and setting forth the allegation which he expected to prove,
secure a notice from the court to the defendant to produce the invoice, and, if the defendant refused to produce it, the
allegations stated in the motion should be taken as confessed, but if produced, the United States Attorney should be
permitted, under the direction of the court, to make an examination of the invoice, and might offer the same in
evidence. This Act had succeeded the Act of 1867, which provided that, in such cases, the District Judge, on affidavit of
any person interested, might issue a warrant to the marshal to enter the premises where the invoice was and take
possession of it and hold it subject to the order of the judge. This had been preceded by the Act of 1863 of a similar
tenor, except that it directed the warrant to the collector, instead of the marshal. The United States Attorney followed
the Act of 1874 and compelled the production of the invoice.

The court held the Act of 1874 repugnant to the Fourth and Fifth Amendments. As to the Fourth Amendment, Justice
Bradley said (page 116 U. S. 621):

Page 277 U. S. 459

"But, in regard to the Fourth Amendment, it is contended that, whatever might have been alleged against the
constitutionality of the acts of 1863 and 1867, that of 1874, under which the order in the present case was made, is free
from constitutional objection because it does not authorize the search and seizure of books and papers, but only
requires the defendant or claimant to produce them. That is so; but it declares that, if he does not produce them, the
allegations which it is affirmed they will prove shall be taken as confessed. This is tantamount to compelling their
production, for the prosecuting attorney will always be sure to state the evidence expected to be derived from them as
strongly as the case will admit of. It is true that certain aggravating incidents of actual search and seizure, such as
forcible entry into a man's house and searching amongst his papers, are wanting, and, to this extent, the proceeding
under the Act of 1874 is a mitigation of that which was authorized by the former acts; but it accomplishes the
substantial object of those acts in forcing from a party evidence against himself. It is our opinion, therefore, that a
compulsory production of a man's private papers to establish a criminal charge against him, or to forfeit his property, is
within the scope of the Fourth Amendment to the Constitution in all cases in which a search and seizure would be,
because it is a material ingredient, and effects the sole object and purpose of search and seizure."

Concurring, Mr. Justice Miller and Chief Justice Waite said that they did not think the machinery used to get this
evidence amounted to a search and seizure, but they agreed that the Fifth Amendment had been violated.

The statute provided an official demand for the production of a paper or document by the defendant for official search
and use as evidence on penalty that, by refusal, he should be conclusively held to admit the incriminating

Page 277 U. S. 460

character of the document as charged. It was certainly no straining of the language to construe the search and seizure
under the Fourth Amendment to include such official procedure.

The next case, and perhaps the most important, is Weeks v. United States, 232 U. S. 383 -- a conviction for using the
mails to transmit coupons or tickets in a lottery enterprise. The defendant was arrested by a police officer without a
warrant. After his arrest, other police officers and the United States marshal went to his house, got the key from a
neighbor, entered the defendant's room and searched it, and took possession of various papers and articles. Neither the
marshal nor the police officers had a search warrant. The defendant filed a petition in court asking the return of all his
property. The court ordered the return of everything not pertinent to the charge, but denied return of relevant
evidence. After the jury was sworn, the defendant again made objection, and, on introduction of the papers, contended
that the search without warrant was a violation of the Fourth and Fifth Amendments, and they were therefore
inadmissible. This court held that such taking of papers by an official of the United States, acting under color of his
office, was in violation of the constitutional rights of the defendant, and, upon making seasonable application, he was
entitled to have them restored, and that, by permitting their use upon the trial, the trial court erred.

The opinion cited with approval language of Mr. Justice Field in Ex parte Jackson, 96 U. S. 727, 96 U. S. 733, saying that
the Fourth Amendment, as a principle of protection, was applicable to sealed letters and packages in the mail, and that,
consistently with it, such matter could only be opened and examined upon warrants issued on oath or affirmation
particularly describing the thing to be seized.

In Silverthorne Lumber Company v. United States, 251 U. S. 385, the defendants were arrested at their homes and

Page 277 U. S. 461

detained in custody. While so detained, representatives of the Government, without authority, went to the office of
their company and seized all the books, papers and documents found there. An application for return of the things was
opposed by the District Attorney, who produced a subpoena for certain documents relating to the charge in the
indictment then on file. The court said:

"Thus, the case is not that of knowledge acquired through the wrongful act of a stranger, but it must be assumed that
the Government planned, or at all events ratified, the whole performance."

And it held that the illegal character of the original seizure characterized the entire proceeding, and, under the Weeks
case, the seized papers must be restored.

In Amos v. United States, 255 U. S. 313, the defendant was convicted of concealing whiskey on which the tax had not
been paid. At the trial, he presented a petition asking that private property seized in a search of his house and store
"within his curtilage" without warrant should be returned. This was denied. A woman who claimed to be his wife was
told by the revenue officers that they had come to search the premises for violation of the revenue law. She opened the
door; they entered, and found whiskey. Further searches in the house disclosed more. It was held that this action
constituted a violation of the Fourth Amendment, and that the denial of the motion to restore the whiskey and to
exclude the testimony was error.

In Gouled v. The United States, 255 U. S. 298, the facts were these: Gouled and two others were charged with conspiracy
to defraud the United States. One pleaded guilty, and another was acquitted. Gouled prosecuted error. The matter was
presented here on questions propounded by the lower court. The first related to the admission in evidence of a paper
surreptitiously taken from the office of the defendant by one acting under the direction
Page 277 U. S. 462

of an officer of the Intelligence Department of the Army of the United States. Gouled was suspected of the crime. A
private in the U.S. Army, pretending to make a friendly call on him, gained admission to his office and, in his absence,
without warrant of any character, seized and carried away several documents. One of these belonging to Gouled, was
delivered to the United States Attorney, and by him introduced in evidence. When produced, it was a surprise to the
defendant. He had had no opportunity to make a previous motion to secure a return of it. The paper had no pecuniary
value, but was relevant to the issue made on the trial. Admission of the paper was considered a violation of the Fourth
Amendment.

Agnello v. United States, 269 U. S. 20, held that the Fourth and Fifth Amendments were violated by admission in
evidence of contraband narcotics found in defendant's house, several blocks distant from the place of arrest, after his
arrest, and seized there without a warrant. Under such circumstances, the seizure could not be justified as incidental to
the arrest.

There is no room in the present case for applying the Fifth Amendment unless the Fourth Amendment was first violated.
There was no evidence of compulsion to induce the defendants to talk over their many telephones, They were
continually and voluntarily transacting business without knowledge of the interception. Our consideration must be
confined to the Fourth Amendment.

The striking outcome of the Weeks case and those which followed it was the sweeping declaration that the Fourth
Amendment, although not referring to or limiting the use of evidence in courts, really forbade its introduction if
obtained by government officers through a violation of the Amendment. Theretofore, many had supposed that, under
the ordinary common law rules, if the tendered evidence was pertinent, the method of obtaining it was

Page 277 U. S. 463

unimportant. This was held by the Supreme Judicial Court of Massachusetts in Commonwealth v. Dana, 2 Metcalf, 329,
337. There it was ruled that the only remedy open to a defendant whose rights under a state constitutional equivalent of
the Fourth Amendment had been invaded was by suit and judgment for damages, as Lord Camden held in Entick v.
Carrington, 19 Howell State Trials, 1029. Mr. Justice Bradley made effective use of this case in Boyd v. United States. But
in the Weeks case, and those which followed, this Court decided with great emphasis, and established as the law for the
federal courts, that the protection of the Fourth Amendment would be much impaired unless it was held that not only
was the official violator of the rights under the Amendment subject to action at the suit of the injured defendant, but
also that the evidence thereby obtained could not be received.

The well known historical purpose of the Fourth Amendment, directed against general warrants and writs of assistance,
was to prevent the use of governmental force to search a man's house, his person, his papers and his effects, and to
prevent their seizure against his will. This phase of the misuse of governmental power of compulsion is the emphasis of
the opinion of the Court in the Boyd case. This appears too in the Weeks case, in the Silverthorne case, and in the Amos
case.

Gouled v. United States carried the inhibition against unreasonable searches and seizures to the extreme limit. Its
authority is not to be enlarged by implication, and must be confined to the precise state of facts disclosed by the record.
A representative of the Intelligence Department of the Army, having by stealth obtained admission to the defendant's
office, seized and carried away certain private papers valuable for evidential purposes. This was held an unreasonable
search and seizure within the Fourth Amendment. A stealthy entrance in such circumstances

Page 277 U. S. 464

became the equivalent to an entry by force. There was actual entrance into the private quarters of defendant, and the
taking away of something tangible. Here we have testimony only of voluntary conversations secretly overheard.

The Amendment itself shows that the search is to be of material things -- the person, the house, his papers, or his
effects. The description of the warrant necessary to make the proceeding lawful is that it must specify the place to be
searched and the person or things to be seized.

It is urged that the language of Mr. Justice Field in Ex parte Jackson, already quoted, offers an analogy to the
interpretation of the Fourth Amendment in respect of wiretapping. But the analogy fails. The Fourth Amendment may
have proper application to a sealed letter in the mail because of the constitutional provision for the Post Office
Department and the relations between the Government and those who pay to secure protection of their sealed letters.
See Revised Statutes, §§ 3978 to 3988, whereby Congress monopolizes the carriage of letters and excludes from that
business everyone else, and § 3929, which forbids any postmaster or other person to open any letter not addressed to
himself. It is plainly within the words of the Amendment to say that the unlawful rifling by a government agent of a
sealed letter is a search and seizure of the sender's papers or effects. The letter is a paper, an effect, and in the custody
of a Government that forbids carriage except under its protection.

The United States takes no such care of telegraph or telephone messages as of mailed sealed letters. The Amendment
does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the
use of the sense of hearing, and that only. There was no entry of the houses or offices of the defendants.

Page 277 U. S. 465

By the invention of the telephone fifty years ago and its application for the purpose of extending communications, one
can talk with another at a far distant place. The language of the Amendment cannot be extended and expanded to
include telephone wires reaching to the whole world from the defendant's house or office. The intervening wires are not
part of his house or office any more than are the highways along which they are stretched.

This Court, in Carroll v. United States, 267 U. S. 132, 267 U. S. 149, declared:

"The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it
was adopted and in a manner which will conserve public interests as well as the interests and rights of individual
citizens."

Justice Bradley, in the Boyd case, and Justice Clark in the Gouled case, said that the Fifth Amendment and the Fourth
Amendment were to be liberally construed to effect the purpose of the framers of the Constitution in the interest of
liberty. But that cannot justify enlargement of the language employed beyond the possible practical meaning of houses,
persons, papers, and effects, or so to apply the words search and seizure as to forbid hearing or sight.

Hester v. United States, 265 U. S. 57, held that the testimony of two officers of the law who trespassed on the
defendant's land, concealed themselves one hundred yards away from his house, and saw him come out and hand a
bottle of whiskey to another was not inadmissible. While there was a trespass, there was no search of person, house,
papers or effects. United States v. Lee, 274 U. S. 559, 274 U. S. 563; Eversole v. State, 106 Tex.Cr. 567.

Congress may, of course, protect the secrecy of telephone messages by making them, when intercepted, inadmissible in
evidence in federal criminal trials by direct legislation,
Page 277 U. S. 466

and thus depart from the common law of evidence. But the courts may not adopt such a policy by attributing an
enlarged and unusual meaning to the Fourth Amendment. The reasonable view is that one who installs in his house a
telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires
beyond his house and messages while passing over them are not within the protection of the Fourth Amendment. Here,
those who intercepted the projected voices were not in the house of either party to the conversation.

Neither the cases we have cited nor any of the many federal decisions brought to our attention hold the Fourth
Amendment to have been violated as against a defendant unless there has been an official search and seizure of his
person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house "or
curtilage" for the purpose of making a seizure.

We think, therefore, that the wiretapping here disclosed did not amount to a search or seizure within the meaning of
the Fourth Amendment.

What has been said disposes of the only question that comes within the terms of our order granting certiorari in these
cases. But some of our number, departing from that order, have concluded that there is merit in the two-fold objection
overruled in both courts below -- that evidence obtained through intercepting of telephone messages by government
agents was inadmissible because the mode of obtaining it was unethical, and a misdemeanor under the law of
Washington. To avoid any misapprehension of our views of that objection, we shall deal with it in both of its phases.

While a Territory, the English common law prevailed in Washington, and thus continued after her admission in 1889. The
rules of evidence in criminal cases in courts of the United States sitting there, consequently, are those of the common
law. United States v. Reid, 12 How. 361,

Page 277 U. S. 467

53 U. S. 363, 53 U. S. 366; Logan v. United States, 144 U. S. 263, 144 U. S. 301; Rosen v. United States, 245 U. S. 467;
Withaup v. United States, 127 Fed. 530, 534; Robinson v. United States, 292 Fed. 683, 685.

The common law rule is that the admissibility of evidence, is not affected by the illegality of the means by which it was
obtained. Professor Greenleaf, in his work on evidence, vol. 1, 12th ed., by Redfield, § 254(a) says:

"It may be mentioned in this place, that though papers and other subjects of evidence may have been illegally taken
from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid
objection to their admissibility, if they are pertinent to the issue. The court will not take notice how they were obtained,
whether lawfully or unlawfully, nor will it form an issue, to determine that question."

Mr. Jones, in his work on the same subject, refers to Mr. Greenleaf's statement and says:

"Where there is no violation of a constitutional guaranty, the verity of the above statement is absolute."

Vol. 5, § 2075, note 3.

The rule is supported by many English and American cases cited by Jones in vol. 5, 2075, note 3, and § 2076, note 6, and
by Wigmore, vol. 4, § 2183. It is recognized by this Court, in Adams v. New York, 192 U. S. 585. The Weeks case
announced an exception to the common law rule by excluding all evidence in the procuring of which government
officials took part by methods forbidden by the Fourth and Fifth Amendments. Many state courts do not follow the
Weeks case. People v. Defore, 242 N.Y. 13. But those who do treat it as an exception to the general common law rule,
and required by constitutional limitations. Hughes v. State, 145 Tenn. 544, 551, 566; State v. Wills, 91 W.Va. 659, 677;
State v. Slamon, 73 Vt. 212, 214, 215; Gindrat v. People, 138 Ill. 103, 111; People v. Castree, 311 Ill. 392, 396, 397; State
v.

Page 277 U. S. 468

Gardner, 77 Mont. 8, 21; State v. Fahn, 53 N.Dak. 203, 210. The common law rule must apply in the case at bar. Nor can
we, without the sanction of congressional enactment, subscribe to the suggestion that the courts have a discretion to
exclude evidence the admission of which is not unconstitutional because unethically secured. This would be at variance
with the common law doctrine generally supported by authority. There is no case that sustains, nor any recognized text
book that gives color to, such a view. Our general experience shows that much evidence has always been receivable
although not obtained by conformity to the highest ethics. The history of criminal trials shows numerous cases of
prosecutions of oath-bound conspiracies for murder, robbery, and other crimes where officers of the law have disguised
themselves and joined the organizations, taken the oaths and given themselves every appearance of active members
engaged in the promotion of crime, for the purpose of securing evidence. Evidence secured by such means has always
been received.

A standard which would forbid the reception of evidence if obtained by other than nice ethical conduct by government
officials would make society suffer and give criminals greater immunity than has been known heretofore. In the absence
of controlling legislation by Congress, those who realize the difficulties in bringing offenders to justice may well deem it
wise that the exclusion of evidence should be confined to cases where rights under the Constitution would be violated
by admitting it.

The statute of Washington, adopted in 1909, provides (Remington Compiled Statutes, 1922, § 26518) that:

"Every person . . . who shall intercept, read or in any manner interrupt or delay the sending of a message over any
telegraph or telephone line . . . shall be guilty of a misdemeanor

Page 277 U. S. 469

"

This statute does not declare that evidence obtained by such interception shall be inadmissible, and, by the common law
already referred to, it would not be. People v. McDonald, 177 App.Div. (N.Y.) 806. Whether the State of Washington may
prosecute and punish federal officers violating this law and those whose messages were intercepted may sue them
civilly is not before us. But clearly a statute, passed twenty years after the admission of the State into the Union cannot
affect the rules of evidence applicable in courts of the United States in criminal cases. Chief Justice Taney, in United
States v. Reid, 12 How. 361, 53 U. S. 363, construing the 34th section of the Judiciary Act, said:

"But it could not be supposed, without very plain words to show it, that Congress intended to give the states the power
of prescribing the rules of evidence in trials for offenses against the United States. For this construction would place the
criminal jurisprudence of one sovereignty under the control of another."
See also Withaup v. United States, 127 Fed. 530, 534.

The judgments of the Circuit Court of Appeals are affirmed. The mandates will go down forthwith under Rule 31.

Affirmed.

MR. JUSTICE HOLMES:

My brother BRANDEIS has given this case so exhaustive an examination that I desire to add but a few words. While I do
not deny it, I am not prepared to say that the penumbra of the Fourth and Fifth Amendments covers the defendant,
although I fully agree that Courts are apt to err by sticking too closely to the words of a law where those words import a
policy that goes beyond them. Gooch v. Oregon Short line R.R. Co., 258 U. S. 22, 258 U. S. 24. But I think, as MR. JUSTICE
BRANDEIS says, that, apart from the Constitution, the Government ought not to use

Page 277 U. S. 470

evidence obtained and only obtainable by a criminal act. There is no body of precedents by which we are bound, and
which confines us to logical deduction from established rules. Therefore we must consider the two objects of desire,
both of which we cannot have, and make up our minds which to choose. It is desirable that criminals should be
detected, and, to that end, that all available evidence should be used. It also is desirable that the Government should
not itself foster and pay for other crime, when they are the means by which the evidence is to be obtained. If it pays its
officers for having got evidence by crime I do not see why it may not as well pay them for getting it in the same way, and
I can attach no importance to protestations of disapproval if it knowingly accepts and pays and announces that, in future
it will pay for the fruits. We have to choose, and, for my part, I think it a less evil that some criminals should escape than
that the Government should play an ignoble part.

For those who agree with me, no distinction can be taken between the Government as prosecutor and the Government
as judge. If the existing code does not permit district attorneys to have a hand in such dirty business, it does not permit
the judge to allow such iniquities to succeed. See Silverthorne Lumber Co. v. United States, 251 U. S. 385. And if all that I
have said so far be accepted, it makes no difference that, in this case, wiretapping is made a crime by the law of the
State, not by the law of the United States. It is true that a State cannot make rules of evidence for Courts of the United
States, but the State has authority over the conduct in question, and I hardly think that the United States would appear
to greater advantage when paying for an odious crime against State law than when inciting to the disregard of its own. I
am aware of the often repeated statement that, in a criminal proceeding, the Court will not take notice of the manner in
which papers offered in evidence have been

Page 277 U. S. 471

obtained. But that somewhat rudimentary mode of disposing of the question has been overthrown by Weeks v. United
States, 232 U. S. 383, and the cases that have followed it. I have said that we are free to choose between two principles
of policy. But if we are to confine ourselves to precedent and logic, the reason for excluding evidence obtained by
violating the Constitution seems to me logically to lead to excluding evidence obtained by a crime of the officers of the
law.

MR. JUSTICE BRANDEIS, dissenting.

The defendants were convicted of conspiring to violate the National Prohibition Act. Before any of the persons now
charged had been arrested or indicted, the telephones by means of which they habitually communicated with one
another and with others had been tapped by federal officers. To this end, a lineman of long experience in wiretapping
was employed on behalf of the Government and at its expense. He tapped eight telephones, some in the homes of the
persons charged, some in their offices. Acting on behalf of the Government and in their official capacity, at least six
other prohibition agents listened over the tapped wires and reported the messages taken. Their operations extended
over a period of nearly five months. The typewritten record of the notes of conversations overheard occupies 775
typewritten pages. By objections seasonably made and persistently renewed, the defendants objected to the admission
of the evidence obtained by wiretapping on the ground that the Government's wiretapping constituted an unreasonable
search and seizure in violation of the Fourth Amendment, and that the use as evidence of the conversations overheard
compelled the defendants to be witnesses against themselves in violation of the Fifth Amendment.

The Government makes no attempt to defend the methods employed by its officers. Indeed, it concedes

Page 277 U. S. 472

that, if wiretapping can be deemed a search and seizure within the Fourth Amendment, such wiretapping as was
practiced in the case at bar was an unreasonable search and seizure, and that the evidence thus obtained was
inadmissible. But it relies on the language of the Amendment, and it claims that the protection given thereby cannot
properly be held to include a telephone conversation.

"We must never forget," said Mr. Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 17 U. S. 407, "that it is
a constitution we are expounding." Since then, this Court has repeatedly sustained the exercise of power by Congress,
under various clauses of that instrument, over objects of which the Fathers could not have dreamed. See Pensacola
Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1, 96 U. S. 9; Northern Pacific Ry. Co. v. North Dakota, 250 U. S.
135; Dakota Central Telephone Co. v. South Dakota, 250 U. S. 163; Brooks v. United States, 267 U. S. 432. We have
likewise held that general limitations on the powers of Government, like those embodied in the due process clauses of
the Fifth and Fourteenth Amendments, do not forbid the United States or the States from meeting modern conditions
by regulations which, "a century ago, or even half a century ago, probably would have been rejected as arbitrary and
oppressive." Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 272 U. S. 387; Buck v. Bell, 274 U. S. 200. Clauses
guaranteeing to the individual protection against specific abuses of power must have a similar capacity of adaptation to
a changing world. It was with reference to such a clause that this Court said, in Weems v. United States, 217 U. S. 349,
217 U. S. 373:

"Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils, but its general language
should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings
into existence new conditions

Page 277 U. S. 473

and purposes. Therefore, a principle, to be vital, must be capable of wider application than the mischief which gave it
birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions.
They are, to use the words of Chief Justice Marshall 'designed to approach immortality as nearly as human institutions
can approach it.' The future is their care, and provision for events of good and bad tendencies of which no prophecy can
be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of
what may be. Under any other rule, a constitution would indeed be as easy of application as it would be deficient in
efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and
lifeless formulas. Rights declared in words might be lost in reality."
When the Fourth and Fifth Amendments were adopted, "the form that evil had theretofore taken" had been necessarily
simple. Force and violence were then the only means known to man by which a Government could directly effect self-
incrimination. It could compel the individual to testify -- a compulsion effected, if need be, by torture. It could secure
possession of his papers and other articles incident to his private life -- a seizure effected, if need be, by breaking and
entry. Protection against such invasion of "the sanctities of a man's home and the privacies of life" was provided in the
Fourth and Fifth Amendments by specific language. Boyd v. United States, 116 U. S. 616, 116 U. S. 630. But "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.

Page 277 U. S. 474

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. "That places the liberty of every man in the hands of every petty officer" was said by James Otis of much
lesser intrusions than these. [Footnote 1] To Lord Camden, a far slighter intrusion seemed "subversive of all the
comforts of society." [Footnote 2] Can it be that the Constitution affords no protection against such invasions of
individual security?

A sufficient answer is found in Boyd v. United States, 116 U. S. 616, 116 U. S. 627-630, a case that will be remembered as
long as civil liberty lives in the United States. This Court there reviewed the history that lay behind the Fourth and Fifth
Amendments. We said with reference to Lord Camden's judgment in Entick v. Carrington, 19 Howell's State Trials 1030:

"The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther
than the concrete form of the case there before the court, with its adventitious circumstances; they apply to all
invasions on the part of the Government and its employes of the sanctities of a man's home and the privacies of life. It is
not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is
the invasion of his indefeasible right of personal security,

Page 277 U. S. 475

personal liberty and private property, where that right has never been forfeited by his conviction of some public offence
-- it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. Breaking
into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory
extortion of a man's own testimony or of his private papers to be used as evidence of a crime or to forfeit his goods is
within the condemnation of that judgment. In this regard, the Fourth and Fifth Amendments run almost into each other.
[Footnote 3]"

In Ex parte Jackson, 96 U. S. 727, it was held that a sealed letter entrusted to the mail is protected by the Amendments.
The mail is a public service furnished by the Government. The telephone is a public service furnished by its authority.
There is, in essence, no difference between the sealed letter and the private telephone message. As Judge Rudkin said
below:

"True, the one is visible, the other invisible; the one is tangible, the other intangible; the one is sealed, and the other
unsealed, but these are distinctions without a difference."
The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails.
Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations

Page 277 U. S. 476

between them upon any subject, and, although proper, confidential and privileged, may be overheard. Moreover, the
tapping of one man's telephone line involves the tapping of the telephone of every other person whom he may call or
who may call him. As a means of espionage, writs of assistance and general warrants are but puny instruments of
tyranny and oppression when compared with wiretapping.

Time and again, this Court in giving effect to the principle underlying the Fourth Amendment, has refused to place an
unduly literal construction upon it. This was notably illustrated in the Boyd case itself. Taking language in its ordinary
meaning, there is no "search" or "seizure" when a defendant is required to produce a document in the orderly process
of a court's procedure. "The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures" would not be violated, under any ordinary construction of language, by compelling
obedience to a subpoena. But this Court holds the evidence inadmissible simply because the information leading to the
issue of the subpoena has been unlawfully secured. Silverthorne Lumber Co. v. United States, 251 U. S. 385. Literally,
there is no "search" or "seizure" when a friendly visitor abstracts papers from an office; yet we held in Gouled v. United
States, 255 U. S. 298, that evidence so obtained could not be used. No court which looked at the words of the
Amendment, rather than at its underlying purpose, would hold, as this Court did in Ex parte Jackson, 96 U. S. 727, 96 U.
S. 733, that its protection extended to letters in the mails. The provision against self-incrimination in the Fifth
Amendment has been given an equally broad construction. The language is: "No person shall be compelled in any
criminal case to be a witness against himself." Yet we have held not only that the

Page 277 U. S. 477

protection of the Amendment extends to a witness before a grand jury, although he has not been charged with crime,
Counselman v. Hitchcock, 142 U. S. 547, 142 U. S. 562, 586, but that:

"[i]t applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility
him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant."

McCarthy v. Arndsten, 266 U. S. 34, 266 U. S. 40. The narrow language of the Amendment has been consistently
construed in the light of its object,

"to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which
might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad
as the mischief against which it seeks to guard."

Counselman v. Hitchcock, supra, p. 142 U. S. 562.

Decisions of this Court applying the principle of the Boyd case have settled these things. Unjustified search and seizure
violates the Fourth Amendment, whatever the character of the paper; [Footnote 4] whether the paper when taken by
the federal officers was in the home, [Footnote 5] in an office, [Footnote 6] or elsewhere; [Footnote 7] whether the
taking was effected by force, [Footnote 8] by

Page 277 U. S. 478

fraud, [Footnote 9] or in the orderly process of a court's procedure. [Footnote 10] From these decisions, it follows
necessarily that the Amendment is violated by the officer's reading the paper without a physical seizure, without his
even touching it, and that use, in any criminal proceeding, of the contents of the paper so examined -- as where they are
testified to by a federal officer who thus saw the document, or where, through knowledge so obtained, a copy has been
procured elsewhere [Footnote 11] -- any such use constitutes a violation of the Fifth Amendment.

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 man's 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

Page 277 U. S. 479

in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.

Applying to the Fourth and Fifth Amendments the established rule of construction, the defendants' objections to the
evidence obtained by wiretapping must, in my opinion, be sustained. It is, of course, immaterial where the physical
connection with the telephone wires leading into the defendants' premises was made. And it is also immaterial that the
intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the
Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-
minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without
understanding. [Footnote 12]

Independently of the constitutional question, I am of opinion that the judgment should be reversed. By the laws of
Washington, wiretapping is a crime. [Footnote 13] Pierce's

Page 277 U. S. 480

Code, 1921, § 8976(18). To prove its case, the Government was obliged to lay bare the crimes committed by its officers
on its behalf. A federal court should not permit such a prosecution to continue. Compare Harkin v. Brundage, 276 U. S.
36, id., 604.

Page 277 U. S. 481

The situation in the case at bar differs widely from that presented in Burdeau v. McDowell, 256 U. S. 465. There, only a
single lot of papers was involved. They had been obtained by a private detective while acting on behalf of a private
party; without the knowledge of any federal official; long before anyone had thought of instituting a

Page 277 U. S. 482

federal prosecution. Here, the evidence obtained by crime was obtained at the Government's expense, by its officers,
while acting on its behalf; the officers who committed these crimes are the same officers who were charged with the
enforcement of the Prohibition Act; the crimes of these officers were committed for the purpose of securing evidence
with which to obtain an indictment and to secure a conviction. The evidence so obtained constitutes the warp and woof
of the Government's case. The aggregate of the Government evidence occupies 306 pages of the printed record. More
than 210 of them are filled by recitals of the details of the wiretapping and of facts ascertained thereby. [Footnote 14]
There is literally no other evidence of guilt on the part of some of the defendants except that illegally obtained by these
officers. As to nearly all the defendants (except those who admitted guilt), the evidence relied upon to secure a
conviction consisted mainly of that which these officers had so obtained by violating the state law.

As Judge Rudkin said below:

"Here we are concerned with neither eavesdroppers nor thieves. Nor are we concerned with the acts of private
individuals. . . . We are concerned only with the acts of federal agents whose powers are limited and controlled by the
Constitution of the United States."

The Eighteenth Amendment has not, in terms, empowered Congress to authorize anyone to violate the criminal laws of
a State. And Congress has never purported to do so. Compare Maryland v. Soper, 270 U. S. 9. The terms of appointment
of federal prohibition agents do not purport to confer upon them authority to violate any criminal law. Their superior
officer, the Secretary of the Treasury, has not instructed them to commit

Page 277 U. S. 483

crime on behalf of the United States. It may be assumed that the Attorney General of the United States did not give any
such instruction. [Footnote 15]

When these unlawful acts were committed, they were crimes only of the officers individually. The Government was
innocent, in legal contemplation, for no federal official is authorized to commit a crime on its behalf. When the
Government, having full knowledge, sought, through the Department of Justice, to avail itself of the fruits of these acts
in order to accomplish its own ends, it assumed moral responsibility for the officers' crimes. Compare The Paquete
Habana, 189 U. S. 453, 189 U. S. 465; O'Reilly deCamara v. Brooke, 209 U. S. 45, 209 U. S. 52; Dodge v. United States, 272
U. S. 530, 272 U. S. 532; Gambino v. United States, 275 U. S. 310. And if this Court should permit the Government, by
means of its officers' crimes, to effect its purpose of punishing the defendants, there would seem to be present all the
elements of a ratification. If so, the Government itself would become a lawbreaker.

Will this Court, by sustaining the judgment below, sanction such conduct on the part of the Executive? The governing
principle has long been settled. It is that a court will not redress a wrong when he who invokes its aid has unclean hands.
[Footnote 16] The maxim of unclean hands comes

Page 277 U. S. 484

from courts of equity. [Footnote 17] But the principle prevails also in courts of law. Its common application is in civil
actions between private parties. Where the Government is the actor, the reasons for applying it are even more
persuasive. Where the remedies invoked are those of the criminal law, the reasons are compelling. [Footnote 18]

The door of a court is not barred because the plaintiff has committed a crime. The confirmed criminal is as much entitled
to redress as his most virtuous fellow citizen; no record of crime, however long, makes one an outlaw. The court's aid is
denied only when he who seeks it has violated the law in connection with the very transaction as to which he seeks legal
redress. [Footnote 19] Then aid is denied despite the defendant's wrong. It is denied in order to maintain respect for
law; in order to promote confidence in the administration of justice; in order to preserve the judicial process from
contamination. The rule is one, not of action, but of inaction. It is sometimes

Page 277 U. S. 485

spoken of as a rule of substantive law. But it extends to matters of procedure, as well. [Footnote 20] A defense may be
waived. It is waived when not pleaded. But the objection that the plaintiff comes with unclean hands will be taken by
the court itself. [Footnote 21] It will be taken despite the wish to the contrary of all the parties to the litigation. The
court protects itself.

Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct
that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to
observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the
whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law;
it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the
criminal law, the end justifies the means -- to declare that the Government may commit crimes in order to secure the
conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this Court should
resolutely set its face.

Katz v. United States

No. 35

Argued October 17, 1967

Decided December 18, 1967

389 U.S. 347

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

Petitioner was convicted under an indictment charging him with transmitting wagering information by telephone across
state lines in violation of 18 U.S.C. § 1084. Evidence of petitioner's end of the conversations, overheard by FBI agents
who had attached an electronic listening and recording device to the outside of the telephone booth from which the
calls were made, was introduced at the trial. The Court of Appeals affirmed the conviction, finding that there was no
Fourth Amendment violation, since there was "no physical entrance into the area occupied by" petitioner.

Held:
1. The Government's eavesdropping activities violated the privacy upon which petitioner justifiably relied while using the
telephone booth, and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. Pp. 389 U.
S. 350-353.

(a) The Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral
statements. Silverman v. United States, 365 U. S. 505, 365 U. S. 511. P. 389 U. S. 353.

(b) Because the Fourth Amendment protects people, rather than places, its reach cannot turn on the presence or
absence of a physical intrusion into any given enclosure. The "trespass" doctrine of Olmstead v. United States, 277 U. S.
438, and Goldman v. United States, 316 U. S. 129, is no longer controlling. Pp. 389 U. S. 351, 389 U. S. 353.

2. Although the surveillance in this case may have been so narrowly circumscribed that it could constitutionally have
been authorized in advance, it was not in fact conducted pursuant to the warrant procedure which is a constitutional
precondition of such electronic surveillance. Pp. 389 U. S. 354-359.

369 F.2d 130, reversed.

Page 389 U. S. 348

MR. JUSTICE STEWART delivered the opinion of the Court.

The petitioner was convicted in the District Court for the Southern District of California under an eight-count indictment
charging him with transmitting wagering information by telephone from Los Angeles to Miami and Boston, in violation
of a federal statute. [Footnote 1] At trial, the Government was permitted, over the petitioner's objection, to introduce
evidence of the petitioner's end of telephone conversations, overheard by FBI agents who had attached an electronic
listening and recording device to the outside of the public telephone booth from which he had placed his calls. In
affirming his conviction, the Court of Appeals rejected the contention that the recordings had been obtained in violation
of the Fourth Amendment,

Page 389 U. S. 349

because "[t]here was no physical entrance into the area occupied by [the petitioner]." [Footnote 2] We granted
certiorari in order to consider the constitutional questions thus presented. [Footnote 3]

The petitioner has phrased those questions as follows:

"A. Whether a public telephone booth is a constitutionally protected area so that evidence obtained by attaching an
electronic listening recording device to the top of such a booth is obtained in violation of the right to privacy of the user
of the booth. "

Page 389 U. S. 350

"B. Whether physical penetration of a constitutionally protected area is necessary before a search and seizure can be
said to be violative of the Fourth Amendment to the United States Constitution."
We decline to adopt this formulation of the issues. 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. [Footnote 4] Other provisions of the Constitution protect personal privacy from other forms of
governmental invasion. [Footnote 5] But the protection of a person's general right to privacy -- his right to be let alone
by other people [Footnote 6] -- is, like the

Page 389 U. S. 351

protection of his property and of his very life, left largely to the law of the individual States. [Footnote 7]

Because of the misleading way the issues have been formulated, the parties have attached great significance to the
characterization of the telephone booth from which the petitioner placed his calls. The petitioner has strenuously
argued that the booth was a "constitutionally protected area." The Government has maintained with equal vigor that it
was not. [Footnote 8] But this effort to decide whether or not a given "area," viewed in the abstract, is "constitutionally
protected" deflects attention from the problem presented by this case. [Footnote 9] For 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. See Lewis v. United States, 385 U. S. 206, 385 U. S. 210; United States v. Lee,
274 U. S. 559, 274 U. S. 563. But what he seeks to preserve as private, even in an area accessible to the public, may be
constitutionally protected.

Page 389 U. S. 352

See Rios v. United States, 364 U. S. 253; Ex parte Jackson, 96 U. S. 727, 96 U. S. 733.

The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed
partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what
he sought to exclude when he entered the booth was not the intruding eye -- it was the uninvited ear. He did not shed
his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a
business office, [Footnote 10] in a friend's apartment, [Footnote 11] or in a taxicab, [Footnote 12] a person in a
telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind
him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the
mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that
the public telephone has come to play in private communication.

The Government contends, however, that the activities of its agents in this case should not be tested by Fourth
Amendment requirements, for the surveillance technique they employed involved no physical penetration of the
telephone booth from which the petitioner placed his calls. It is true that the absence of such penetration was at one
time thought to foreclose further Fourth Amendment inquiry, Olmstead v. United States, 277 U. S. 438, 277 U. S. 457,
277 U. S. 464, 277 U. S. 466; Goldman v. United States, 316 U. S. 129, 316 U. S. 134-136, for that Amendment was
thought to limit only searches and seizures of tangible

Page 389 U. S. 353

property. [Footnote 13] But "[t]he premise that property interests control the right of the Government to search and
seize has been discredited." Warden v. Hayden, 387 U. S. 294, 387 U. S. 304. Thus, although a closely divided Court
supposed in Olmstead that surveillance without any trespass and without the seizure of any material object fell outside
the ambit of the Constitution, we have since departed from the narrow view on which that decision rested. Indeed, we
have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to
the recording of oral statements, overheard without any "technical trespass under . . . local property law." Silverman v.
United States, 365 U. S. 505, 365 U. S. 511. Once this much is acknowledged, and once it is recognized that the Fourth
Amendment protects people -- and not simply "areas" -- against unreasonable searches and seizures, it becomes clear
that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given
enclosure.

We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that
the "trespass" doctrine there enunciated can no longer be regarded as controlling. The Government's activities in
electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while
using the telephone booth, and thus constituted a "search and seizure" within the meaning of the Fourth Amendment.
The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can
have no constitutional significance.

Page 389 U. S. 354

The question remaining for decision, then, is whether the search and seizure conducted in this case complied with
constitutional standards. In that regard, the Government's position is that its agents acted in an entirely defensible
manner: they did not begin their electronic surveillance until investigation of the petitioner's activities had established a
strong probability that he was using the telephone in question to transmit gambling information to persons in other
States, in violation of federal law. Moreover, the surveillance was limited, both in scope and in duration, to the specific
purpose of establishing the contents of the petitioner's unlawful telephonic communications. The agents confined their
surveillance to the brief periods during which he used the telephone booth, [Footnote 14] and they took great care to
overhear only the conversations of the petitioner himself. [Footnote 15]

Accepting this account of the Government's actions as accurate, it is clear that this surveillance was so narrowly
circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically
informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could
constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the Government
asserts, in fact, took place. Only last Term we sustained the validity of

Page 389 U. S. 355

such an authorization, holding that, under sufficiently "precise and discriminate circumstances," a federal court may
empower government agents to employ a concealed electronic device "for the narrow and particularized purpose of
ascertaining the truth of the . . . allegations" of a "detailed factual affidavit alleging the commission of a specific criminal
offense." Osborn v. United States, 385 U. S. 323, 385 U. S. 329-330. Discussing that holding, the Court in Berger v. New
York, 388 U. S. 41, said that "the order authorizing the use of the electronic device" in Osborn "afforded similar
protections to those . . . of conventional warrants authorizing the seizure of tangible evidence." Through those
protections, "no greater invasion of privacy was permitted than was necessary under the circumstances." Id. at 388 U. S.
57. [Footnote 16] Here, too, a similar

Page 389 U. S. 356

judicial order could have accommodated "the legitimate needs of law enforcement" [Footnote 17] by authorizing the
carefully limited use of electronic surveillance.
The Government urges that, because its agents relied upon the decisions in Olmstead and Goldman, and because they
did no more here than they might properly have done with prior judicial sanction, we should retroactively validate their
conduct. That we cannot do. It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is
that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before
commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They
were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific
court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail
of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole
ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities
to the least intrusive

Page 389 U. S. 357

means consistent with that end. Searches conducted without warrants have been held unlawful "notwithstanding facts
unquestionably showing probable cause," Agnello v. United States, 269 U. S. 20, 269 U. S. 33, for the Constitution
requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the
police. . . ." Wong Sun v. United States, 371 U. S. 471, 371 U. S. 481-482. "Over and again, this Court has emphasized that
the mandate of the [Fourth] Amendment requires adherence to judicial processes," United States v. Jeffers, 342 U. S. 48,
342 U. S. 51, and that searches conducted outside the judicial process, without prior approval by judge or magistrate,
are per se unreasonable under the Fourth Amendment [Footnote 18] -- subject only to a few specifically established and
well delineated exceptions. [Footnote 19]

It is difficult to imagine how any of those exceptions could ever apply to the sort of search and seizure involved in this
case. Even electronic surveillance substantially contemporaneous with an individual's arrest could hardly be deemed an
"incident" of that arrest. [Footnote 20]

Page 389 U. S. 358

Nor could the use of electronic surveillance without prior authorization be justified on grounds of "hot pursuit."
[Footnote 21] And, of course, the very nature of electronic surveillance precludes its use pursuant to the suspect's
consent. [Footnote 22]

The Government does not question these basic principles. Rather, it urges the creation of a new exception to cover this
case. [Footnote 23] It argues that surveillance of a telephone booth should be exempted from the usual requirement of
advance authorization by a magistrate upon a showing of probable cause. We cannot agree. Omission of such
authorization

"bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far
less reliable procedure of an after-the-event justification for the . . . search, too likely to be subtly influenced by the
familiar shortcomings of hindsight judgment."

Beck v. Ohio, 379 U. S. 89, 379 U. S. 96. And bypassing a neutral predetermination of the scope of a search leaves
individuals secure from Fourth Amendment

Page 389 U. S. 359

violations "only in the discretion of the police." Id. at 379 U. S. 97.

These considerations do not vanish when the search in question is transferred from the setting of a home, an office, or a
hotel room to that of a telephone booth. Wherever a man may be, he is entitled to know that he will remain free from
unreasonable searches and seizures. The government agents here ignored "the procedure of antecedent justification . . .
that is central to the Fourth Amendment," [Footnote 24] a procedure that we hold to be a constitutional precondition of
the kind of electronic surveillance involved in this case. Because the surveillance here failed to meet that condition, and
because it led to the petitioner's conviction, the judgment must be reversed.

It is so ordered.

KYLLO v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 99-8508. Argued February 20, 200l-Decided June 11,2001

Suspicious that marijuana was being grown in petitioner Kyllo's home in a triplex, agents used a thermal-imaging device
to scan the triplex to determine if the amount of heat emanating from it was consistent with the high-intensity lamps
typically used for indoor marijuana growth. The scan showed that Kyllo's garage roof and a side wall were relatively hot
compared to the rest of his home and substantially warmer than the neighboring units. Based in part on the thermal
imaging, a Federal Magistrate Judge issued a warrant to search Kyllo's home, where the agents found marijuana
growing. After Kyllo was indicted on a federal drug charge, he unsuccessfully moved to suppress the evidence seized
from his home and then entered a conditional guilty plea. The Ninth Circuit ultimately affirmed, upholding the thermal
imaging on the ground that Kyllo had shown no subjective expectation of privacy because he had made no attempt to
conceal the heat escaping from his home. Even if he had, ruled the court, there was no objectively reasonable
expectation of privacy because the thermal imager did not expose any intimate details of Kyllo's life, only amorphous
hot spots on his home's exterior.

Held: Where, as here, the Government uses a device that is not in general public use, to explore details of a private
home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment
"search," and is presumptively unreasonable without a warrant. Pp. 31-41.

(a) The question whether a warrantless search of a home is reasonable and hence constitutional must be answered no in
most instances, but the antecedent question whether a Fourth Amendment "search" has occurred is not so simple. This
Court has approved warrantless visual surveillance of a home, see California v. Ciraolo, 476 U. S. 207, 213, ruling that
visual observation is no "search" at all, see Dow Chemical Co. v. United States, 476 U. S. 227, 234-235, 239. In assessing
when a search is not a search, the Court has adapted a principle first enunciated in Katz v. United States, 389 U. S. 347,
361: A "search" does not occur-even when its object is a house explicitly protected by the Fourth Amendment-unless the
individual manifested a subjective

28

Syllabus

expectation of privacy in the searched object, and society is willing to recognize that expectation as reasonable, see, e.
g., California v. Ciraolo, supra, at 211. Pp. 31-33.

(b) While it may be difficult to refine the Katz test in some instances, in the case of the search of a home's interior-the
prototypical and hence most commonly litigated area of protected privacy-there is a ready criterion, with roots deep in
the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To
withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed
by the Fourth Amendment. Thus, obtaining by sense-enhancing technology any information regarding the home's
interior that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area,"
Silverman v. United States, 365 U. S. 505, 512, constitutes a search-at least where (as here) the technology in question is
not in general public use. This assures preservation of that degree of privacy against government that existed when the
Fourth Amendment was adopted. Pp. 33-35.

(c) Based on this criterion, the information obtained by the thermal imager in this case was the product of a search. The
Court rejects the Government's argument that the thermal imaging must be upheld because it detected only heat
radiating from the home's external surface. Such a mechanical interpretation of the Fourth Amendment was rejected in
Katz, where the eavesdropping device in question picked up only sound waves that reached the exterior of the phone
booth to which it was attached. Reversing that approach would leave the homeowner at the mercy of advancing
technology-including imaging technology that could discern all human activity in the home. Also rejected is the
Government's contention that the thermal imaging was constitutional because it did not detect "intimate details." Such
an approach would be wrong in principle because, in the sanctity of the home, all details are intimate details. See, e. g.,
United States v. Karo, 468 U. S. 705; Dow Chemical, supra, at 238, distinguished. It would also be impractical in
application, failing to provide a workable accommodation between law enforcement needs and Fourth Amendment
interests. See Oliver v. United States, 466 U. S. 170, 181. Pp. 35-40.

(d) Since the imaging in this case was an unlawful search, it will remain for the District Court to determine whether,
without the evidence it provided, the search warrant was supported by probable cause-and if not, whether there is any
other basis for supporting admission of that evidence. P. 40.

190 F.3d 1041, reversed and remanded.

29

SCALIA, J., delivered the opinion of the Court, in which SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. STEVENS,
J., filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR and KENNEDY, JJ., joined, post, p. 41.

Kenneth Lerner, by appointment of the Court, 531 U. S. 955, argued the cause and filed briefs for petitioner.

Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were former Solicitor
General Waxman, Assistant Attorney General Robinson, Irving L. Gornstein, and Deborah Watson. *

JUSTICE SCALIA delivered the opinion of the Court.

This case presents the question whether the use of a thermal-imaging device aimed at a private home from a public
street to detect relative amounts of heat within the home constitutes a "search" within the meaning of the Fourth
Amendment.

In 1991 Agent William Elliott of the United States Department of the Interior came to suspect that marijuana was being
grown in the home belonging to petitioner Danny Kyllo, part of a triplex on Rhododendron Drive in Florence, Oregon.
Indoor marijuana growth typically requires highintensity lamps. In order to determine whether an amount of heat was
emanating from petitioner's home consistent with the use of such lamps, at 3:20 a.m. on January 16, 1992, Agent Elliott
and Dan Haas used an Agema Thermovision 210 thermal imager to scan the triplex. Thermal imagers detect infrared
radiation, which virtually all objects emit but which is not visible to the naked eye. The imager converts radiation into
images based on relative warmth-black

*Briefs of amici curiae urging reversal were filed for the Liberty Project by Julie M. Carpenter; and for the National
Association of Criminal Defense Lawyers et al. by James J. Tomkovicz, Lisa B. Kemler, and Steven R. Shapiro.

30

is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a video
camera showing heat images. The scan of Kyllo's home took only a few minutes and was performed from the passenger
seat of Agent Elliott's vehicle across the street from the front of the house and also from the street in back of the house.
The scan showed that the roof over the garage and a side wall of petitioner's home were relatively hot compared to the
rest of the home and substantially warmer than neighboring homes in the triplex. Agent Elliott concluded that petitioner
was using halide lights to grow marijuana in his house, which indeed he was. Based on tips from informants, utility bills,
and the thermal imaging, a Federal Magistrate Judge issued a warrant authorizing a search of petitioner's home, and the
agents found an indoor growing operation involving more than 100 plants. Petitioner was indicted on one count of
manufacturing marijuana, in violation of 21 U. s. C. § 841(a)(1). He unsuccessfully moved to suppress the evidence seized
from his home and then entered a conditional guilty plea.

The Court of Appeals for the Ninth Circuit remanded the case for an evidentiary hearing regarding the intrusiveness of
thermal imaging. On remand the District Court found that the Agema 210 "is a non-intrusive device which emits no rays
or beams and shows a crude visual image of the heat being radiated from the outside of the house"; it "did not show any
people or activity within the walls of the structure"; "[t]he device used cannot penetrate walls or windows to reveal
conversations or human activities"; and "[n]o intimate details of the home were observed." Supp. App. to Pet. for Cert.
39-40. Based on these findings, the District Court upheld the validity of the warrant that relied in part upon the thermal
imaging, and reaffirmed its denial of the motion to suppress. A divided Court of Appeals initially reversed, 140 F.3d 1249
(1998), but that

31

opinion was withdrawn and the panel (after a change in composition) affirmed, 190 F.3d 1041 (1999), with Judge
Noonan dissenting. The court held that petitioner had shown no subjective expectation of privacy because he had made
no attempt to conceal the heat escaping from his home, id., at 1046, and even if he had, there was no objectively
reasonable expectation of privacy because the imager "did not expose any intimate details of Kyllo's life," only
"amorphous 'hot spots' on the roof and exterior wall," id., at 1047. We granted certiorari. 530 U. S. 1305 (2000).

II

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated." "At the very core" of the Fourth Amendment
"stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion."
Silverman v. United States, 365 U. S. 505, 511 (1961). With few exceptions, the question whether a warrantless search of
a home is reasonable and hence constitutional must be answered no. See Illinois v. Rodriguez, 497 U. S. 177, 181 (1990);
Payton v. New York, 445 U. S. 573, 586 (1980).

On the other hand, the antecedent question whether or not a Fourth Amendment "search" has occurred is not so simple
under our precedent. The permissibility of ordinary visual surveillance of a home used to be clear because, well into the
20th century, our Fourth Amendment jurisprudence was tied to common-law trespass. See, e. g., Goldman v. United
States, 316 U. S. 129, 134-136 (1942); Olmstead v. United States, 277 U. S. 438, 464-466 (1928). Cf. Silverman v. United
States, supra, at 510-512 (technical trespass not necessary for Fourth Amendment violation; it suffices if there is "actual
intrusion into a constitutionally protected area"). Visual surveillance was unquestionably lawful because" 'the

32

eye cannot by the laws of England be guilty of a trespass.'" Boyd v. United States, 116 U. S. 616, 628 (1886) (quoting
Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (K. B. 1765)). We have since decoupled violation of a person's
Fourth Amendment rights from trespassory violation of his property, see Rakas v. III inois, 439 U. S. 128, 143 (1978), but
the lawfulness of warrantless visual surveillance of a home has still been preserved. As we observed in California v.
Ciraolo, 476 U. S. 207, 213 (1986), "[t]he Fourth Amendment protection of the home has never been extended to
require law enforcement officers to shield their eyes when passing by a home on public thoroughfares."

One might think that the new validating rationale would be that examining the portion of a house that is in plain public
view, while it is a "search" 1 despite the absence of trespass, is not an "unreasonable" one under the Fourth
Amendment. See Minnesota v. Carter, 525 U. S. 83, 104 (1998) (BREYER, J., concurring in judgment). But in fact we have
held that visual observation is no "search" at allperhaps in order to preserve somewhat more intact our doctrine that
warrantless searches are presumptively unconstitutional. See Dow Chemical Co. v. United States, 476 U. S. 227, 234-235,
239 (1986). In assessing when a search is not a search, we have applied somewhat in reverse the principle first
enunciated in Katz v. United States, 389 U. S. 347 (1967). Katz involved eavesdropping by means of an electronic
listening device placed on the outside of a telephone booth-a location not within the catalog ("persons, houses, papers,
and effects") that the Fourth Amendment protects against unreasonable searches. We held that the

1 When the Fourth Amendment was adopted, as now, to "search" meant "[tJo look over or through for the purpose of
finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a
thief." N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989).

33

Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he "justifiably relied" upon
the privacy of the telephone booth. Id., at 353. As Justice Harlan's oft-quoted concurrence described it, a Fourth
Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as
reasonable. See id., at 361. We have subsequently applied this principle to hold that a Fourth Amendment search does
not occur-even when the explicitly protected location of a house is concerned-unless "the individual manifested a
subjective expectation of privacy in the object of the challenged search," and "society [is] willing to recognize that
expectation as reasonable." Ciraolo, supra, at 211. We have applied this test in holding that it is not a search for the
police to use a pen register at the phone company to determine what numbers were dialed in a private home, Smith v.
Maryland, 442 U. S. 735, 743744 (1979), and we have applied the test on two different occasions in holding that aerial
surveillance of private homes and surrounding areas does not constitute a search, Ciraolo, supra; Florida v. Riley, 488 U.
S. 445 (1989).

The present case involves officers on a public street engaged in more than naked-eye surveillance of a home. We have
previously reserved judgment as to how much technological enhancement of ordinary perception from such a vantage
point, if any, is too much. While we upheld enhanced aerial photography of an industrial complex in Dow Chemical, we
noted that we found "it important that this is not an area immediately adjacent to a private home, where privacy
expectations are most heightened," 476 U. S., at 237, n. 4 (emphasis in original).

III
It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been

34

entirely unaffected by the advance of technology. For example, as the cases discussed above make clear, the technology
enabling human flight has exposed to public view (and hence, we have said, to official observation) uncovered portions
of the house and its curtilage that once were private. See Ciraolo, supra, at 215. The question we confront today is what
limits there are upon this power of technology to shrink the realm of guaranteed privacy.

The Katz test-whether the individual has an expectation of privacy that society is prepared to recognize as reasonable-
has often been criticized as circular, and hence subjective and unpredictable. See 1 W. LaFave, Search and Seizure §
2.1(d), pp. 393-394 (3d ed. 1996); Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 S. Ct. Rev.
173, 188; Carter, supra, at 97 (SCALIA, J., concurring). But see Rakas, supra, at 143-144, n.12. While it may be difficult to
refine Katz when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered
portions of residences is at issue, in the case of the search of the interior of homes-the prototypical and hence most
commonly litigated area of protected privacythere is a ready criterion, with roots deep in the common law, of the
minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this
minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment.
We think that obtaining by senseenhancing technology any information regarding the interior of the home that could
not otherwise have been obtained without physical "intrusion into a constitutionally protected area," Silverman, 365 U.
S., at 512, constitutes a searchat least where (as here) the technology in question is not in general public use. This
assures preservation of that degree of privacy against government that existed when the Fourth Amendment was
adopted. On the basis of this criterion, the

35

information obtained by the thermal imager in this case was the product of a search.2

The Government maintains, however, that the thermal imaging must be upheld because it detected "only heat radiating
from the external surface of the house," Brief for United States 26. The dissent makes this its leading point, see post, at
41, contending that there is a fundamental difference between what it calls "off-the-wall" observations and "through-
the-wall surveillance." But just as a thermal imager captures only heat emanating from a house, so also a powerful
directional microphone picks up only sound emanating from a house-and a satellite capable of scanning from many
miles away would pick up only visible light emanating from a house. We rejected such a mechanical interpretation of the
Fourth Amendment in Katz, where the eavesdropping device picked up only sound waves that reached the exterior of
the phone booth. Reversing that approach would leave the homeowner at the mercy of advancing technologyincluding
imaging technology that could discern all human

2 The dissent's repeated assertion that the thermal imaging did not obtain information regarding the interior of the
home, post, at 43, 44 (opinion of STEVENS, J.), is simply inaccurate. A thermal imager reveals the relative heat of various
rooms in the home. The dissent may not find that information particularly private or important, see post, at 43-44, 45,
4950, but there is no basis for saying it is not information regarding the interior of the home. The dissent's comparison
of the thermal imaging to various circumstances in which outside observers might be able to perceive, without
technology, the heat of the home-for example, by observing snowmelt on the roof, post, at 43-is quite irrelevant. The
fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means
that violate the Fourth Amendment. The police might, for example, learn how many people are in a particular house by
setting up year-round surveillance; but that does not make breaking and entering to find out the same information
lawful. In any event, on the night of January 16, 1992, no outside observer could have discerned the relative heat of
Kyllo's home without thermal imaging.
36

activity in the home. While the technology used in the present case was relatively crude, the rule we adopt must take
account of more sophisticated systems that are already in use or in development.3 The dissent's reliance on the
distinction between "off-the-wall" and "through-the-wall" observation is entirely incompatible with the dissent's belief,
which we discuss below, that thermal-imaging observations of the intimate details of a home are impermissible. The
most sophisticated thermal-imaging devices continue to measure heat "off-the-wall" rather than "through-the-wall"; the
dissent's disapproval of those more sophisticated thermalimaging devices, see post, at 49, is an acknowledgment that
there is no substance to this distinction. As for the dissent's extraordinary assertion that anything learned through "an
inference" cannot be a search, see post, at 44, that would validate even the "through-the-wall" technologies that the
dissent purports to disapprove. Surely the dissent does not believe that the through-the-wall radar or ultrasound
technology produces an 8-by-10 Kodak glossy that needs no analysis (i. e., the making of inferences). And, of course, the
novel proposition that inference insulates a search is blatantly contrary to United States v. Karo, 468 U. S. 705 (1984),
where the police "inferred" from the activation of a beeper that a certain can of ether was in the home. The police ac-

3 The ability to "see" through walls and other opaque barriers is a clear, and scientifically feasible, goal of law
enforcement research and development. The National Law Enforcement and Corrections Technology Center, a program
within the United States Department of Justice, features on its Internet Website projects that include a "RadarBased
Through-the-Wall Surveillance System," "Handheld Ultrasound Through the Wall Surveillance," and a "Radar Flashlight"
that "will enable law enforcement officers to detect individuals through interior building walls."
www.nlectc.org/techproj/ (visited May 3, 2001). Some devices may emit low levels of radiation that travel "through-the-
wall," but others, such as more sophisticated thermal-imaging devices, are entirely passive, or "off-the-wall" as the
dissent puts it.

37

tivity was held to be a search, and the search was held unlawfu1.4

The Government also contends that the thermal imaging was constitutional because it did not "detect private activities
occurring in private areas," Brief for United States 22. It points out that in Dow Chemical we observed that the enhanced
aerial photography did not reveal any "intimate details." 476 U. S., at 238. Dow Chemical, however, involved enhanced
aerial photography of an industrial complex, which does not share the Fourth Amendment sanctity of the home. The
Fourth Amendment's protection of the home has never been tied to measurement of the quality or quantity of
information obtained. In Silverman, for example, we made clear that any physical invasion of the structure of the home,
"by even a fraction of an inch," was too much, 365 U. S., at 512, and there is certainly no exception to the warrant
requirement for the officer who barely cracks open the front door and sees nothing but the nonintimate rug on the
vestibule floor. In the home, our cases show, all details are intimate details, because the entire area is held safe from
prying government eyes. Thus, in Karo, supra, the only thing detected was a can of ether in the

4 The dissent asserts, post, at 44-45, n. 3, that we have misunderstood its point, which is not that inference insulates a
search, but that inference alone is not a search. If we misunderstood the point, it was only in a good-faith effort to
render the point germane to the case at hand. The issue in this case is not the police's allegedly unlawful inferencing, but
their allegedly unlawful thermal-imaging measurement of the emanations from a house. We say such measurement is a
search; the dissent says it is not, because an inference is not a search. We took that to mean that, since the
technologically enhanced emanations had to be the basis of inferences before anything inside the house could be
known, the use of the emanations could not be a search. But the dissent certainly knows better than we what it intends.
And if it means only that an inference is not a search, we certainly agree. That has no bearing, however, upon whether
hi-tech measurement of emanations from a house is a search.

38
home; and in Arizona v. Hicks, 480 U. S. 321 (1987), the only thing detected by a physical search that went beyond what
officers lawfully present could observe in "plain view" was the registration number of a phonograph turntable. These
were intimate details because they were details of the home, just as was the detail of how warm-or even how relatively
warm-Kyllo was heating his residence.5

Limiting the prohibition of thermal imaging to "intimate details" would not only be wrong in principle; it would be
impractical in application, failing to provide "a workable accommodation between the needs of law enforcement and
the interests protected by the Fourth Amendment," Oliver v. United States, 466 U. S. 170, 181 (1984). To begin with,
there is no necessary connection between the sophistication of the surveillance equipment and the "intimacy" of the
details that it observes-which means that one cannot say (and the police cannot be assured) that use of the relatively
crude equipment at issue here will always be lawful. The Agema Thermovision 210 might disclose, for example, at what
hour each night the lady of the house takes her daily sauna and bath-a detail that many would consider "intimate"; and
a much more sophisticated system might detect nothing more intimate than the fact that someone left a closet light on.
We could not, in other words, develop a rule approving only that through-the-wall surveillance which identifies objects
no smaller than 36 by 36 inches, but would have to develop a jurisprudence specifying which

5The Government cites our statement in California v. Ciraolo, 476 U. S. 207 (1986), noting apparent agreement with the
State of California that aerial surveillance of a house's curtilage could become "'invasive'" if "'modern technology'"
revealed "'those intimate associations, objects or activities otherwise imperceptible to police or fellow citizens.'" Id., at
215, n. 3 (quoting Brief for State of California 14-15). We think the Court's focus in this secondhand dictum was not upon
intimacy but upon otherwise-imperceptibility, which is precisely the principle we vindicate today.

39

home activities are "intimate" and which are not. And even when (if ever) that jurisprudence were fully developed, no
police officer would be able to know in advance whether his through-the-wall surveillance picks up "intimate" detailsand
thus would be unable to know in advance whether it is constitutional.

The dissent's proposed standard-whether the technology offers the "functional equivalent of actual presence in the area
being searched," post, at 47-would seem quite similar to our own at first blush. The dissent concludes that Katz was such
a case, but then inexplicably asserts that if the same listening device only revealed the volume of the conversation, the
surveillance would be permissible, post, at 49-50. Yet if, without technology, the police could not discern volume
without being actually present in the phone booth, JUSTICE STEVENS should conclude a search has occurred. Cf. Karo,
468 U. S., at 735 (STEVENS, J., concurring in part and dissenting in part) ("I find little comfort in the Court's notion that
no invasion of privacy occurs until a listener obtains some significant information by use of the device .... A bathtub is a
less private area when the plumber is present even if his back is turned"). The same should hold for the interior heat of
the home if only a person present in the home could discern the heat. Thus the driving force of the dissent, despite its
recitation of the above standard, appears to be a distinction among different types of information-whether the
"homeowner would even care if anybody noticed," post, at 50. The dissent offers no practical guidance for the
application of this standard, and for reasons already discussed, we believe there can be none. The people in their
houses, as well as the police, deserve more precision.6

6 The dissent argues that we have injected potential uncertainty into the constitutional analysis by noting that whether
or not the technology is in general public use may be a factor. See post, at 47. That quarrel,

40

We have said that the Fourth Amendment draws "a firm line at the entrance to the house," Payton, 445 U. S., at 590.
That line, we think, must be not only firm but also brightwhich requires clear specification of those methods of
surveillance that require a warrant. While it is certainly possible to conclude from the videotape of the thermal imaging
that occurred in this case that no "significant" compromise of the homeowner's privacy has occurred, we must take the
long view, from the original meaning of the Fourth Amendment forward.

"The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it
was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual
citizens." Carroll v. United States, 267 U. S. 132, 149 (1925).

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that
would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively
unreasonable without a warrant.

Since we hold the Thermovision imaging to have been an unlawful search, it will remain for the District Court to
determine whether, without the evidence it provided, the search warrant issued in this case was supported by probable
cause-and if not, whether there is any other basis for supporting admission of the evidence that the search pursuant to
the warrant produced.

however, is not with us but with this Court's precedent. See Ciraolo, supra, at 215 ("In an age where private and
commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants
were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet"). Given that we
can quite confidently say that thermal imaging is not "routine," we decline in this case to reexamine that factor.

41

***

The judgment of the Court of Appeals is reversed; the case is remanded for further proceedings consistent with this
opinion.

It is so ordered.

JUSTICE STEVENS, with whom THE CHIEF JUSTICE, JusTICE O'CONNOR, and JUSTICE KENNEDY join, dissenting.

There is, in my judgment, a distinction of constitutional magnitude between "through-the-wall surveillance" that gives
the observer or listener direct access to information in a private area, on the one hand, and the thought processes used
to draw inferences from information in the public domain, on the other hand. The Court has crafted a rule that purports
to deal with direct observations of the inside of the home, but the case before us merely involves indirect deductions
from "off-the-wall" surveillance, that is, observations of the exterior of the home. Those observations were made with a
fairly primitive thermal imager that gathered data exposed on the outside of petitioner's home but did not invade any
constitutionally protected interest in privacy.l Moreover, I believe that the supposedly "bright-line" rule the Court has
created in response to its concerns about future technological developments is unnecessary, unwise, and inconsistent
with the Fourth Amendment.

There is no need for the Court to craft a new rule to decide this case, as it is controlled by established principles from
1 After an evidentiary hearing, the District Court found:

"[T]he use of the thermal imaging device here was not an intrusion into Kyllo's home. No intimate details of the home
were observed, and there was no intrusion upon the privacy of the individuals within the home. The device used cannot
penetrate walls or windows to reveal conversations or human activities. The device recorded only the heat being
emitted from the home." Supp. App. to Pet. for Cert. 40.

42

our Fourth Amendment jurisprudence. One of those core principles, of course, is that "searches and seizures inside a
home without a warrant are presumptively unreasonable." Payton v. New York, 445 U. S. 573, 586 (1980) (emphasis
added). But it is equally well settled that searches and seizures of property in plain view are presumptively reasonable.
See id., at 586-587.2 Whether that property is residential or commercial, the basic principle is the same: "'What a person
knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.'"
California v. Ciraolo, 476 U. S. 207, 213 (1986) (quoting Katz v. United States, 389 U. S. 347, 351 (1967)); see Florida v.
Riley, 488 U. S. 445, 449-450 (1989); California v. Greenwood, 486 U. S. 35, 40-41 (1988); Dow Chemical Co. v. United
States, 476 U. S. 227, 235-236 (1986); Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp., 416 U. S. 861, 865
(1974). That is the principle implicated here.

While the Court "take[s] the long view" and decides this case based largely on the potential of yet-to-be-developed
technology that might allow "through-the-wall surveillance," ante, at 38-40; see ante, at 36, n. 3, this case involves
nothing more than off-the-wall surveillance by law enforcement officers to gather information exposed to the general
public from the outside of petitioner's home. All that the infrared camera did in this case was passively measure heat
emitted

2 Thus, for example, we have found consistent with the Fourth Amendment, even absent a warrant, the search and
seizure of garbage left for collection outside the curtilage of a home, California v. Greenwood, 486 U. S. 35 (1988); the
aerial surveillance of a fenced-in backyard from an altitude of 1,000 feet, California v. Ciraolo, 476 U. S. 207 (1986); the
aerial observation of a partially exposed interior of a residential greenhouse from 400 feet above, Florida v. Riley, 488 U.
S. 445 (1989); the aerial photography of an industrial complex from several thousand feet above, Dow Chemical Co. v.
United States, 476 U. S. 227 (1986); and the observation of smoke emanating from chimney stacks, Air Pollution
Variance Bd. of Colo. v. Western Alfalfa Corp., 416 U. S. 861 (1974).

43

from the exterior surfaces of petitioner's home; all that those measurements showed were relative differences in
emission levels, vaguely indicating that some areas of the roof and outside walls were warmer than others. As still
images from the infrared scans show, see Appendix, infra, no details regarding the interior of petitioner's home were
revealed. Unlike an x-ray scan, or other possible "throughthe-wall" techniques, the detection of infrared radiation
emanating from the home did not accomplish "an unauthorized physical penetration into the premises," Silverman v.
United States, 365 U. S. 505, 509 (1961), nor did it "obtain information that it could not have obtained by observation
from outside the curtilage of the house," United States v. Karo, 468 U. S. 705, 715 (1984).

Indeed, the ordinary use of the senses might enable a neighbor or passerby to notice the heat emanating from a
building, particularly if it is vented, as was the case here. Additionally, any member of the public might notice that one
part of a house is warmer than another part or a nearby building if, for example, rainwater evaporates or snow melts at
different rates across its surfaces. Such use of the senses would not convert into an unreasonable search if, instead, an
adjoining neighbor allowed an officer onto her property to verify her perceptions with a sensitive thermometer. Nor, in
my view, does such observation become an unreasonable search if made from a distance with the aid of a device that
merely discloses that the exterior of one house, or one area of the house, is much warmer than another. Nothing more
occurred in this case.

Thus, the notion that heat emissions from the outside of a dwelling are a private matter implicating the protections of
the Fourth Amendment (the text of which guarantees the right of people "to be secure in their ... houses" against
unreasonable searches and seizures (emphasis added)) is not only unprecedented but also quite difficult to take
seriously. Heat waves, like aromas that are generated in a kitchen, or

44

in a laboratory or opium den, enter the public domain if and when they leave a building. A subjective expectation that
they would remain private is not only implausible but also surely not "one that society is prepared to recognize as
'reasonable.'" Katz, 389 U. S., at 361 (Harlan, J., concurring).

To be sure, the homeowner has a reasonable expectation of privacy concerning what takes place within the home, and
the Fourth Amendment's protection against physical invasions of the home should apply to their functional equivalent.
But the equipment in this case did not penetrate the walls of petitioner's home, and while it did pick up "details of the
home" that were exposed to the public, ante, at 38, it did not obtain "any information regarding the interior of the
home," ante, at 34 (emphasis added). In the Court's own words, based on what the thermal imager "showed" regarding
the outside of petitioner's home, the officers "concluded" that petitioner was engaging in illegal activity inside the
home. Ante, at 30. It would be quite absurd to characterize their thought processes as "searches," regardless of whether
they inferred (rightly) that petitioner was growing marijuana in his house, or (wrongly) that "the lady of the house [was
taking] her daily sauna and bath." Ante, at 38. In either case, the only conclusions the officers reached concerning the
interior of the home were at least as indirect as those that might have been inferred from the contents of discarded
garbage, see California v. Greenwood, 486 U. S. 35 (1988), or pen register data, see Smith v. Maryland, 442 U. S. 735
(1979), or, as in this case, subpoenaed utility records, see 190 F.3d 1041, 1043 (CA9 1999). For the first time in its
history, the Court assumes that an inference can amount to a Fourth Amendment violation. See ante, at 36-37.3

3 Although the Court credits us with the "novel proposition that inference insulates a search," ante, at 36, our point
simply is that an inference cannot be a search, contrary to the Court's reasoning. See supra this page. Thus, the Court's
use of United States v. Karo, 468 U. S. 705

45

Notwithstanding the implications of today's decision, there is a strong public interest in avoiding constitutional litigation
over the monitoring of emissions from homes, and over the inferences drawn from such monitoring. Just as "the police
cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by
any member of the public," Greenwood, 486 U. S., at 41, so too public officials should not have to avert their senses or
their equipment from detecting emissions in the public domain such as excessive heat, traces of smoke, suspicious
odors, odorless gases, airborne particulates, or radioactive emissions, any of which could identify hazards to the
community. In my judgment, monitoring such emissions with "sense-enhancing technology," ante, at 34, and drawing
useful conclusions from such monitoring, is an entirely reasonable public service.

On the other hand, the countervailing privacy interest is at best trivial. After all, homes generally are insulated to keep
heat in, rather than to prevent the detection of heat going out, and it does not seem to me that society will suffer from a
rule requiring the rare homeowner who both intends to engage in uncommon activities that produce extraordinary
amounts of heat, and wishes to conceal that production from outsiders, to make sure that the surrounding area is well
insulated. Cf. United States v. Jacobsen, 466 U. S. 109, 122 (1984) ("The concept of an interest in privacy that society is
prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well
(1984), to refute a point we do not make underscores the fact that the Court has no real answer (either in logic or in law)
to the point we do make. Of course, Karo itself does not provide any support for the Court's view that inferences can
amount to unconstitutional searches. The illegality in that case was "the monitoring of a beeper in a private residence"
to obtain information that "could not have [been] obtained by observation from outside," id., at 714-715, rather than
any thought processes that flowed from such monitoring.

46

justified, that certain facts will not come to the attention of the authorities"). The interest in concealing the heat
escaping from one's house pales in significance to "the chief evil against which the wording of the Fourth Amendment is
directed," the "physical entry of the home," United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U. S.
297, 313 (1972), and it is hard to believe that it is an interest the Framers sought to protect in our Constitution.

Since what was involved in this case was nothing more than drawing inferences from off-the-wall surveillance, rather
than any "through-the-wall" surveillance, the officers' conduct did not amount to a search and was perfectly
reasonable.4

II

Instead of trying to answer the question whether the use of the thermal imager in this case was even arguably
unreasonable, the Court has fashioned a rule that is intended to provide essential guidance for the day when "more
sophisticated systems" gain the "ability to 'see' through walls and other opaque barriers." Ante, at 36, and n. 3. The
newly minted rule encompasses "obtaining [1] by senseenhancing technology [2] any information regarding the interior
of the home [3] that could not otherwise have been obtained without physical intrusion into a constitutionally protected
area ... [4] at least where (as here) the technology in question is not in general public use." Ante, at 34 (internal
quotation marks omitted). In my judgment, the

4 This view comports with that of all the Courts of Appeals that have resolved the issue. See 190 F.3d 1041 (CA9 1999);
United States v. Robinson, 62 F.3d 1325 (CAll 1995) (upholding warrantless use of thermal imager); United States v.
Myers, 46 F.3d 668 (CA7 1995) (same); United States v. Ishmael, 48 F.3d 850 (CA5 1995) (same); United States v. Pinson,
24 F.3d 1056 (CA8 1994) (same). But see United States v. Cusumano, 67 F.3d 1497 (CAW 1995) (warrantless use of
thermal imager violated Fourth Amendment), vacated and decided on other grounds, 83 F.3d 1247 (CAW 1996) (en
bane).

47

Court's new rule is at once too broad and too narrow, and is not justified by the Court's explanation for its adoption. As I
have suggested, I would not erect a constitutional impediment to the use of sense-enhancing technology unless it
provides its user with the functional equivalent of actual presence in the area being searched.

Despite the Court's attempt to draw a line that is "not only firm but also bright," ante, at 40, the contours of its new rule
are uncertain because its protection apparently dissipates as soon as the relevant technology is "in general public use,"
ante, at 34. Yet how much use is general public use is not even hinted at by the Court's opinion, which makes the
somewhat doubtful assumption that the thermal imager used in this case does not satisfy that criterion.5 In any event,
putting aside its lack of clarity, this criterion is somewhat perverse because it seems likely that the threat to privacy will
grow, rather than recede, as the use of intrusive equipment becomes more readily available.
It is clear, however, that the category of "sense-enhancing technology" covered by the new rule, ibid., is far too broad. It
would, for example, embrace potential mechanical substitutes for dogs trained to react when they sniff narcotics. But in
United States v. Place, 462 U. S. 696, 707 (1983), we held that a dog sniff that "discloses only the presence or absence of
narcotics" does "not constitute a 'search' within the meaning of the Fourth Amendment," and it must follow that sense-
enhancing equipment that identifies nothing but illegal

5 The record describes a device that numbers close to a thousand manufactured units; that has a predecessor
numbering in the neighborhood of 4,000 to 5,000 units; that competes with a similar product numbering from 5,000 to
6,000 units; and that is "readily available to the public" for commercial, personal, or law enforcement purposes, and is
just an 800number away from being rented from "half a dozen national companies" by anyone who wants one. App. 18.
Since, by virtue of the Court's new rule, the issue is one of first impression, perhaps it should order an evidentiary
hearing to determine whether these facts suffice to establish "general public use."

48

activity is not a search either. Nevertheless, the use of such a device would be unconstitutional under the Court's rule, as
would the use of other new devices that might detect the odor of deadly bacteria or chemicals for making a new type of
high explosive, even if the devices (like the dog sniffs) are "so limited both in the manner in which" they obtain
information and "in the content of the information" they reveal. Ibid. If nothing more than that sort of information could
be obtained by using the devices in a public place to monitor emissions from a house, then their use would be no more
objectionable than the use of the thermal imager in this case.

The application of the Court's new rule to "any information regarding the interior of the home," ante, at 34, is also
unnecessarily broad. If it takes sensitive equipment to detect an odor that identifies criminal conduct and nothing else,
the fact that the odor emanates from the interior of a home should not provide it with constitutional protection. See
supra, at 47 and this page. The criterion, moreover, is too sweeping in that information "regarding" the interior of a
home apparently is not just information obtained through its walls, but also information concerning the outside of the
building that could lead to (however many) inferences "regarding" what might be inside. Under that expansive view, I
suppose, an officer using an infrared camera to observe a man silently entering the side door of a house at night carrying
a pizza might conclude that its interior is now occupied by someone who likes pizza, and by doing so the officer would be
guilty of conducting an unconstitutional "search" of the home.

Because the new rule applies to information regarding the "interior" of the home, it is too narrow as well as too broad.
Clearly, a rule that is designed to protect individuals from the overly intrusive use of sense-enhancing equipment should
not be limited to a home. If such equipment

49

did provide its user with the functional equivalent of access to a private place-such as, for example, the telephone booth
involved in Katz, or an office building-then the rule should apply to such an area as well as to a home. See Katz, 389 U. S.,
at 351 ("[T]he Fourth Amendment protects people, not places").

The final requirement of the Court's new rule, that the information "could not otherwise have been obtained without
physical intrusion into a constitutionally protected area," ante, at 34 (internal quotation marks omitted), also extends
too far as the Court applies it. As noted, the Court effectively treats the mental process of analyzing data obtained from
external sources as the equivalent of a physical intrusion into the home. See supra, at 44. As I have explained, however,
the process of drawing inferences from data in the public domain should not be characterized as a search.
The two reasons advanced by the Court as justifications for the adoption of its new rule are both unpersuasive. First, the
Court suggests that its rule is compelled by our holding in Katz, because in that case, as in this, the surveillance consisted
of nothing more than the monitoring of waves emanating from a private area into the public domain. See ante, at 35.
Yet there are critical differences between the cases. In Katz, the electronic listening device attached to the outside of the
phone booth allowed the officers to pick up the content of the conversation inside the booth, making them the
functional equivalent of intruders because they gathered information that was otherwise available only to someone
inside the private area; it would be as if, in this case, the thermal imager presented a view of the heat-generating activity
inside petitioner's home. By contrast, the thermal imager here disclosed only the relative amounts of heat radiating
from the house; it would be as if, in Katz, the listening device disclosed only the rela-

50

tive volume of sound leaving the booth, which presumably was discernible in the public domain.6 Surely, there is a
significant difference between the general and well-settled expectation that strangers will not have direct access to the
contents of private communications, on the one hand, and the rather theoretical expectation that an occasional
homeowner would even care if anybody noticed the relative amounts of heat emanating from the walls of his house, on
the other. It is pure hyperbole for the Court to suggest that refusing to extend the holding of Katz to this case would
leave the homeowner at the mercy of "technology that could discern all human activity in the home." Ante, at 35-36.

Second, the Court argues that the permissibility of "through-the-wall surveillance" cannot depend on a distinction
between observing "intimate details" such as "the lady of the house [taking] her daily sauna and bath," and noticing only
"the nonintimate rug on the vestibule floor" or "objects no smaller than 36 by 36 inches." Ante, at 37, 3839. This entire
argument assumes, of course, that the thermal imager in this case could or did perform "through-thewall surveillance"
that could identify any detail "that would previously have been unknowable without physical intrusion." Ante, at 39-40.
In fact, the device could not, see n. 1, supra, and did not, see Appendix, infra, enable its user to identify either the lady of
the house, the rug on the vestibule floor, or anything else inside the house, whether smaller or larger than 36 by 36
inches. Indeed, the vague thermal images of petitioner's home that are reproduced in the Appendix were submitted by
him to the District Court as part of an expert report raising the question whether the device could even take "accurate,
consistent infrared images" of the

6 The use of the latter device would be constitutional given Smith v.

Maryland, 442 U. S. 735, 741 (1979), which upheld the use of pen registers to record numbers dialed on a phone
because, unlike "the listening device employed in Katz ... pen registers do not acquire the contents of communications."

51

outside of his house. Defendant's Exh. 107, p. 4. But even if the device could reliably show extraordinary differences in
the amounts of heat leaving his home, drawing the inference that there was something suspicious occurring inside the
residence-a conclusion that officers far less gifted than Sherlock Holmes would readily draw-does not qualify as
"through-the-wall surveillance," much less a Fourth Amendment violation.

III

Although the Court is properly and commendably concerned about the threats to privacy that may flow from advances
in the technology available to the law enforcement profession, it has unfortunately failed to heed the tried and true
counsel of judicial restraint. Instead of concentrating on the rather mundane issue that is actually presented by the case
before it, the Court has endeavored to craft an all-encompassing rule for the future. It would be far wiser to give
legislators an unimpeded opportunity to grapple with these emerging issues rather than to shackle them with
prematurely devised constitutional constraints.

I respectfully dissent.

[Appendix to opinion of STEVENS, J., follows this page.]

52

Appendix to opinion of STEVENS, J.

APPENDIX TO OPINION OF STEVENS, J. (Images and text reproduced from defendant's exhibit 107) Top left: Infrared
image of a video frame from the videotape submitted as evidence in this case. The thermogram indicates the suspect
house as it appeared with the Gain and contrast in its default setting. Only the outline of the house is visible. The camera
used was the Thermovision 210. Top Right: Infrared image of a subsequent videoframe taken from the videotape. The
gain and contrast settings have been increased in order to make the walls and roof of the structure appear hotter than
what it actually is.

Bottom Left: Infrared image of the opposite side of the suspects house. The thermogram is also taken from the same
videotape. The camera settings are in the default mode and the outline of the house is barely visible. Only the hot
electrical transformer and the street light are identifiable.

Bottom Right: The same image, but with the gain and contrast increased. This change in camera settings cause any
object to appear hotter than what it actually is. The arrow indicates the overloading of an area immediately around a
hot object in this case the electrical transformer and the streetlight. This overloading of the image is an inherent design
flaw in the camera itself.

UNITED STATES v. JONES

certiorari to the united states court of appeals for the district of columbia circuit

No. 10–1259. Argued November 8, 2011—Decided January 23, 2012

The Government obtained a search warrant permitting it to install a Global-Positioning-System (GPS) tracking device on
a vehicle registered to respondent Jones’s wife. The warrant authorized installation in the District of Columbia and
within 10 days, but agents installed the device on the 11th day and in Maryland. The Government then tracked the
vehicle’s movements for 28 days. It subsequently secured an indictment of Jones and others on drug trafficking
conspiracy charges. The District Court suppressed the GPS data obtained while the vehicle was parked at Jones’s
residence, but held the remaining data admissible because Jones had no reasonable expectation of privacy when the
vehicle was on public streets. Jones was convicted. The D. C. Circuit reversed, concluding that admission of the evidence
obtained by warrantless use of the GPS device violated the Fourth Amendment.

Held: The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s
movements, constitutes a search under the Fourth Amendment. Pp. 3–12.

(a) The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” Here, the Government’s physical intrusion on an “effect” for the
purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the
Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted.
Pp. 3–4.

(b) This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the
20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based
approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347 , which said
that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need
not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s
Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation
of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United
States, 533 U. S. 27 . Katz did not repudiate the understanding that the Fourth Amendment embodies a particular
concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has
been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165 ;
Soldal v. Cook County, 506 U. S. 56 . United States v. Knotts, 460 U. S. 276 , and United States v. Karo, 468 U. S. 705 —
post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another
form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S.
106 , and Oliver v. United States, 466 U. S. 170 , also do not support the Government’s position. Pp. 4–12.

(c) The Government’s alternative argument—that if the attachment and use of the device was a search, it was a
reasonable one—is forfeited because it was not raised below. P. 12.

615 F. 3d 544, affirmed.

Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Sotomayor, JJ., joined.
Sotomayor, J., filed a concurring opinion. Alito, J., filed an opinion concurring in the judgment, in which Ginsburg, Breyer,
and Kagan, JJ., joined.

EN BANC

G.R. No. 203335 February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and ERNESTO SONIDO, JR.,
Petitioners,

vs.

THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE
EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE
PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.

x-----------------------x

G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.

NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.

x-----------------------x

G.R. No. 203306

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP, BERTENI "TOTO"
CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA, CIRILO P. SABARRE, JR., DERVIN
CASTRO, ET AL., Petitioners,

vs.

OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF THE PHILIPPINES, and
HOUSE OF REPRESENTATIVES, Respondents.

x-----------------------x

G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner,

vs.

EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.

x-----------------------x

G.R. No. 203378

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R.
BAGARES, and GILBERT T. ANDRES, Petitioners,

vs.

THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENT OF JUSTICE, THE
DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF INVESTIGATION, THE
PHILIPPINE NATIONAL POLICE, AND THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT
OF SCIENCE AND TECHNOLOGY, Respondents.

x-----------------------x

G.R. No. 203391

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA. KATHERINE
ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE
PHILIPPINES, ET AL., Petitioners,

vs.

PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President Benigno Simeon Aquino III,
LEILA DE LIMA in her capacity as Secretary of Justice, Respondents.
x-----------------------x

G.R. No. 203407

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., National Artist BIENVENIDO L.
LUMBERA, Chairperson of Concerned Artists of the Philippines, ELMER C. LABOG, Chairperson of Kilusang Mayo Uno,
CRISTINA E. PALABAY, Secretary General of Karapatan, FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B.
MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R. LINABAN, Secretary General Gabriela Women's Party,
ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA MATIBAG, Petitioners,

vs.

BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N. OCHOA, JR., Executive
Secretary, SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE ENRILE, HOUSE OF
REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE, JR., LEILA DE LIMA, Secretary of the Department of
Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the Information and Communications Technology Office,
NONNATUS CAESAR R. ROJAS, Director of the National Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief
of the Philippine National Police, MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local
Government, Respondents.

x-----------------------x

G.R. No. 203440

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J. SANTIAGO, GILBERT V.
SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the Ateneo Human Rights Center), Petitioners,

vs.

HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA DE LIMA in her capacity as
Secretary of Justice, HONORABLE MANUEL ROXAS in his capacity as Secretary of the Department of Interior and Local
Government, The CHIEF of the Philippine National Police, The DIRECTOR of the National Bureau of Investigation (all of
the Executive Department of Government), Respondents.

x-----------------------x

G.R. No. 203453

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE (PPI), CENTER FOR MEDIA
FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO,
ARIEL SEBELLINO AND THE PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-ra10175/, Petitioners,

vs.

THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT,
THE SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE
DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME INVESTIGATION AND COORDINATING
CENTER, AND ALL AGENCIES AND INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR
INSTRUCTIONS, ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO. 10175,
Respondents.
x-----------------------x

G.R. No. 203454

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,

vs.

THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, Respondents.

x-----------------------x

G.R. No. 203469

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK RONALD C. RIMORIN; JULIUS D.
ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A.
RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S. REMENTILLA;
MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B.
LICERA, JR; and PINOY EXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners,

vs.

HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the Philippines; SENATE OF THE
PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in his capacity as Senate President; HOUSE OF
REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in his capacity as Speaker of the House of
Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary; HON. LEILA M. DE LIMA, in her
capacity as Secretary of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his capacity as Executive Director, Information
and Communications Technology Office; HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau
of Investigation; and P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National Police,
Respondents.

x-----------------------x

G.R. No. 203501

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.

HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the Republic of the Philippines; HON.
PAQUITO N. OCHOA, JR., in his official capacity as Executive Secretary; HON. LEILA M. DE LIMA, in her official capacity as
Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his official capacity as Executive Director, Information and
Communications Technology Office; NONNATUS CAESAR R. ROJAS, in his official capacity as Director of the National
Bureau of Investigation; and DIRECTOR GENERAL NICANOR A. BARTOLOME, in his official capacity as Chief of the
Philippine National Police, Respondents.

x-----------------------x

G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,

vs.

THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.

x-----------------------x

G.R. No. 203515

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA in his capacity as President and
in his personal capacity, Petitioner,

vs.

OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE, DEPARTMENT OF INTERIOR
AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT OF
BUDGET AND MANAGEMENT AND ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE
AND/OR IMPLEMENTATION OF REPUBLIC ACT 10175, Respondents.

x-----------------------x

G.R. No. 203518

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE FOR MODERN HEROISM,
represented by Leni Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S. Melencio, FRANCIS EUSTON R. ACERO,
MARLON ANTHONY ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA ORALES, JAMES
MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN
DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO
FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners,

vs.

THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE,
THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF
THE DOJ OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING
CENTER, Respondents.

DECISION

ABAD, J.:

These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the Cybercrime Prevention
Act of 2012, unconstitutional and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a person can
connect to the internet, a system that links him to other computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study, amusement,
upliftment, or pure curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general public or for special audiences
like associates, classmates, or friends and read postings from them;

3. Advertise and promote goods or services and make purchases and payments;

4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges, trade houses,
credit card companies, public utilities, hospitals, and schools; and

5. Communicate in writing or by voice with any person through his e-mail address or telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing individual accesses to
and uses of the internet. The cyberspace is a boon to the need of the current generation for greater information and
facility of communication. But all is not well with the system since it could not filter out a number of persons of ill will
who would want to use cyberspace technology for mischiefs and crimes. One of them can, for instance, avail himself of
the system to unjustly ruin the reputation of another or bully the latter by posting defamatory statements against him
that people can read.

And because linking with the internet opens up a user to communications from others, the ill-motivated can use the
cyberspace for committing theft by hacking into or surreptitiously accessing his bank account or credit card or
defrauding him through false representations. The wicked can use the cyberspace, too, for illicit trafficking in sex or for
exposing to pornography guileless children who have access to the internet. For this reason, the government has a
legitimate right to regulate the use of cyberspace and contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer systems and
networks of indispensable or highly useful institutions as well as to the laptop or computer programs and memories of
innocent individuals. They accomplish this by sending electronic viruses or virtual dynamites that destroy those
computer systems, networks, programs, and memories. The government certainly has the duty and the right to prevent
these tomfooleries from happening and punish their perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace activities
violate certain of their constitutional rights. The government of course asserts that the law merely seeks to reasonably
put order into cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court extended the
original 120-day temporary restraining order (TRO) that it earlier issued on October 9, 2012, enjoining respondent
government agencies from implementing the cybercrime law until further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard certain acts as
crimes and impose penalties for their commission as well as provisions that would enable the government to track down
and penalize violators. These provisions are:
a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;

d. Section 4(b)(3) on Identity Theft;

e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

g. Section 4(c)(3) on Unsolicited Commercial Communications;

h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

j. Section 6 on the Penalty of One Degree Higher;

k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;

l. Section 8 on Penalties;

m. Section 12 on Real-Time Collection of Traffic Data;

n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;

q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

u. Section 26(a) on CICC’s Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on the crime of
libel.

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) Illegal Access. – The access to the whole or any part of a computer system without right.

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that interfere with the
fundamental rights of the people and should thus be struck down.

The Court has in a way found the strict scrutiny standard, an American constitutional construct,1 useful in determining
the constitutionality of laws that tend to target a class of things or persons. According to this standard, a legislative
classification that impermissibly interferes with the exercise of fundamental right or operates to the peculiar class
disadvantage of a suspect class is presumed unconstitutional. The burden is on the government to prove that the
classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such
interest.2 Later, the strict scrutiny standard was used to assess the validity of laws dealing with the regulation of speech,
gender, or race as well as other fundamental rights, as expansion from its earlier applications to equal protection.3

In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the strict scrutiny
standard since no fundamental freedom, like speech, is involved in punishing what is essentially a condemnable act –
accessing the computer system of another without right. It is a universally condemned conduct.4

Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals who employ tools
and techniques used by criminal hackers but would neither damage the target systems nor steal information. Ethical
hackers evaluate the target system’s security and report back to the owners the vulnerabilities they found in it and give
instructions for how these can be remedied. Ethical hackers are the equivalent of independent auditors who come into
an organization to verify its bookkeeping records.5

Besides, a client’s engagement of an ethical hacker requires an agreement between them as to the extent of the search,
the methods to be used, and the systems to be tested. This is referred to as the "get out of jail free card."6 Since the
ethical hacker does his job with prior permission from the client, such permission would insulate him from the coverage
of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or deterioration of computer data,
electronic document, or electronic data message, without right, including the introduction or transmission of viruses.

Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data interference, it
intrudes into the area of protected speech and expression, creating a chilling and deterrent effect on these guaranteed
freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not
be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms.7
But Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is a form of
vandalism,8 the act of willfully destroying without right the things that belong to others, in this case their computer
data, electronic document, or electronic data message. Such act has no connection to guaranteed freedoms. There is no
freedom to destroy other people’s computer systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect9 or the fear of
possible prosecution that hangs on the heads of citizens who are minded to step beyond the boundaries of what is
proper. But to prevent the State from legislating criminal laws because they instill such kind of fear is to render the state
powerless in addressing and penalizing socially harmful conduct.10 Here, the chilling effect that results in paralysis is an
illusion since Section 4(a)(3) clearly describes the evil that it seeks to punish and creates no tendency to intimidate the
free exercise of one’s constitutional rights.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no set of
circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.

Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
xxxx

(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to profit, mislead, destroy the
reputation, and deprive others from registering the same, if such a domain name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency
at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and

(iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause12 in that, not being
narrowly tailored, it will cause a user using his real name to suffer the same fate as those who use aliases or take the
name of another in satire, parody, or any other literary device. For example, supposing there exists a well known
billionaire-philanthropist named "Julio Gandolfo," the law would punish for cyber-squatting both the person who
registers such name because he claims it to be his pseudo-name and another who registers the name because it
happens to be his real name. Petitioners claim that, considering the substantial distinction between the two, the law
should recognize the difference.

But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or use it as a
pseudo-name for it is the evil purpose for which he uses the name that the law condemns. The law is reasonable in
penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy reputation, or deprive others who
are not ill-motivated of the rightful opportunity of registering the same. The challenge to the constitutionality of Section
4(a)(6) on ground of denial of equal protection is baseless.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

b) Computer-related Offenses:

xxxx

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession, alteration, or
deletion of identifying information belonging to another, whether natural or juridical, without right: Provided: that if no
damage has yet been caused, the penalty imposable shall be one (1) degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy and
correspondence, and transgresses the freedom of the press.

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of the right
protected by the guarantee against unreasonable searches and seizures.13 But the Court acknowledged its existence as
early as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy exists independently of its identification with liberty;
it is in itself fully deserving of constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The Court explained in
"In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon"15 the relevance of
these zones to the right to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is impermissible
unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones
arises not only from our conviction that the right to privacy is a "constitutional right" and "the right most valued by
civilized men," but also from our adherence to the Universal Declaration of Human Rights which mandates that, "no one
shall be subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of the law
against such interference or attacks."

Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable searches16 and seizures,
which is the basis of the right to be let alone, and (b) the right to privacy of communication and correspondence.17 In
assessing the challenge that the State has impermissibly intruded into these zones of privacy, a court must determine
whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been
violated by unreasonable government intrusion.18

The usual identifying information regarding a person includes his name, his citizenship, his residence address, his contact
number, his place and date of birth, the name of his spouse if any, his occupation, and similar data.19 The law punishes
those who acquire or use such identifying information without right, implicitly to cause damage. Petitioners simply fail
to show how government effort to curb computer-related identity theft violates the right to privacy and correspondence
as well as the right to due process of law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since the specific
conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this section regulates are
specific actions: the acquisition, use, misuse or deletion of personal identifying data of another. There is no fundamental
right to acquire another’s personal data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would be hindered from
accessing the unrestricted user account of a person in the news to secure information about him that could be
published. But this is not the essence of identity theft that the law seeks to prohibit and punish. Evidently, the theft of
identity information must be intended for an illegitimate purpose. Moreover, acquiring and disseminating information
made public by the user himself cannot be regarded as a form of theft.

The Court has defined intent to gain as an internal act which can be established through the overt acts of the offender,
and it may be presumed from the furtive taking of useful property pertaining to another, unless special circumstances
reveal a different intent on the part of the perpetrator.20 As such, the press, whether in quest of news reporting or
social investigation, has nothing to fear since a special circumstance is present to negate intent to gain which is required
by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious
exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

Petitioners claim that the above violates the freedom of expression clause of the Constitution.21 They express fear that
private communications of sexual character between husband and wife or consenting adults, which are not regarded as
crimes under the penal code, would now be regarded as crimes when done "for favor" in cyberspace. In common usage,
the term "favor" includes "gracious kindness," "a special privilege or right granted or conceded," or "a token of love (as a
ribbon) usually worn conspicuously."22 This meaning given to the term "favor" embraces socially tolerated trysts. The
law as written would invite law enforcement agencies into the bedrooms of married couples or consenting individuals.

But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime Prevention Act give a
proper perspective on the issue. These deliberations show a lack of intent to penalize a "private showing x x x between
and among two private persons x x x although that may be a form of obscenity to some."23 The understanding of those
who drew up the cybercrime law is that the element of "engaging in a business" is necessary to constitute the illegal
cybersex.24 The Act actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and
consideration. This includes interactive prostitution and pornography, i.e., by webcam.25

The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not novel. Article 201 of the
RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-Trafficking in Persons Act of 2003
penalizes those who "maintain or hire a person to engage in prostitution or pornography."26 The law defines
prostitution as any act, transaction, scheme, or design involving the use of a person by another, for sexual intercourse or
lascivious conduct in exchange for money, profit, or any other consideration.27

The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve no other purpose
than satisfy the market for violence, lust, or pornography.29 The Court weighed the property rights of individuals against
the public welfare. Private property, if containing pornographic materials, may be forfeited and destroyed. Likewise,
engaging in sexual acts privately through internet connection, perceived by some as a right, has to be balanced with the
mandate of the State to eradicate white slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of obscenity.30 The
Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it apply only to persons
engaged in the business of maintaining, controlling, or operating, directly or indirectly, the lascivious exhibition of sexual
organs or sexual activity with the aid of a computer system as Congress has intended.

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(2) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-
Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be imposed shall
be (1) one degree higher than that provided for in Republic Act No. 9775.

It seems that the above merely expands the scope of the Anti-Child Pornography Act of 200931 (ACPA) to cover identical
activities in cyberspace. In theory, nothing prevents the government from invoking the ACPA when prosecuting persons
who commit child pornography using a computer system. Actually, ACPA’s definition of child pornography already
embraces the use of "electronic, mechanical, digital, optical, magnetic or any other means." Notably, no one has
questioned this ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace. But no one can
complain since the intensity or duration of penalty is a legislative prerogative and there is rational basis for such higher
penalty.32 The potential for uncontrolled proliferation of a particular piece of child pornography when uploaded in the
cyberspace is incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce, direct, manufacture
or create any form of child pornography"33 clearly relates to the prosecution of persons who aid and abet the core
offenses that ACPA seeks to punish.34 Petitioners are wary that a person who merely doodles on paper and imagines a
sexual abuse of a 16-year-old is not criminally liable for producing child pornography but one who formulates the idea
on his laptop would be. Further, if the author bounces off his ideas on Twitter, anyone who replies to the tweet could be
considered aiding and abetting a cybercrime.

The question of aiding and abetting the offense by simply commenting on it will be discussed elsewhere below. For now
the Court must hold that the constitutionality of Section 4(c)(2) is not successfully challenged.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(3) Unsolicited Commercial Communications. – The transmission of commercial electronic communication with the use
of computer system which seeks to advertise, sell, or offer for sale products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative announcements from the sender to its
existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject
receipt of further commercial electronic messages (opt-out) from the same source;

(bb) The commercial electronic communication does not purposely disguise the source of the electronic message; and

(cc) The commercial electronic communication does not purposely include misleading information in any part of the
message in order to induce the recipients to read the message.

The above penalizes the transmission of unsolicited commercial communications, also known as "spam." The term
"spam" surfaced in early internet chat rooms and interactive fantasy games. One who repeats the same sentence or
comment was said to be making a "spam." The term referred to a Monty Python’s Flying Circus scene in which actors
would keep saying "Spam, Spam, Spam, and Spam" when reading options from a menu.35

The Government, represented by the Solicitor General, points out that unsolicited commercial communications or
spams are a nuisance that wastes the storage and network capacities of internet service providers, reduces the
efficiency of commerce and technology, and interferes with the owner’s peaceful enjoyment of his property.
Transmitting spams amounts to trespass to one’s privacy since the person sending out spams enters the recipient’s
domain without prior permission. The OSG contends that commercial speech enjoys less protection in law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the "efficiency of
computers." Secondly, people, before the arrival of the age of computers, have already been receiving such unsolicited
ads by mail. These have never been outlawed as nuisance since people might have interest in such ads. What matters is
that the recipient has the option of not opening or reading these mail ads. That is true with spams. Their recipients
always have the option to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited
commercial ads addressed to him. Commercial speech is a separate category of speech which is not accorded the same
level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless entitled to
protection.36 The State cannot rob him of this right without violating the constitutionally guaranteed freedom of
expression. Unsolicited advertisements are legitimate forms of expression.

Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section 4(c)(4) of the
Cybercrime Prevention Act on cyberlibel.

The RPC provisions on libel read:

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt
of a natural or juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no
good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other
official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public officers in the exercise of their functions.

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography,
engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be
punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both,
in addition to the civil action which may be brought by the offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the provisions of the
RPC on libel. Thus Section 4(c)(4) reads:

Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended,
committed through a computer system or any other similar means which may be devised in the future.

Petitioners lament that libel provisions of the penal code37 and, in effect, the libel provisions of the cybercrime law
carry with them the requirement of "presumed malice" even when the latest jurisprudence already replaces it with the
higher standard of "actual malice" as a basis for conviction.38 Petitioners argue that inferring "presumed malice" from
the accused’s defamatory statement by virtue of Article 354 of the penal code infringes on his constitutionally
guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel should be stricken down as unconstitutional for
otherwise good jurisprudence requiring "actual malice" could easily be overturned as the Court has done in Fermin v.
People39 even where the offended parties happened to be public figures.

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b) publication of the
charge; (c) identity of the person defamed; and (d) existence of malice.40

There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with the knowledge
that it is false or with reckless disregard of whether it was false or not.42 The reckless disregard standard used here
requires a high degree of awareness of probable falsity. There must be sufficient evidence to permit the conclusion that
the accused in fact entertained serious doubts as to the truth of the statement he published. Gross or even extreme
negligence is not sufficient to establish actual malice.43

The prosecution bears the burden of proving the presence of actual malice in instances where such element is required
to establish guilt. The defense of absence of actual malice, even when the statement turns out to be false, is available
where the offended party is a public official or a public figure, as in the cases of Vasquez (a barangay official) and Borjal
(the Executive Director, First National Conference on Land Transportation). Since the penal code and implicitly, the
cybercrime law, mainly target libel against private persons, the Court recognizes that these laws imply a stricter standard
of "malice" to convict the author of a defamatory statement where the offended party is a public figure. Society’s
interest and the maintenance of good government demand a full discussion of public affairs.44

Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the higher standard of
actual malice or malice in fact when it found Cristinelli Fermin guilty of committing libel against complainants who were
public figures. Actually, the Court found the presence of malice in fact in that case. Thus:

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations against
complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there was no malice on her
part. Verily, not only was there malice in law, the article being malicious in itself, but there was also malice in fact, as
there was motive to talk ill against complainants during the electoral campaign. (Emphasis ours)

Indeed, the Court took into account the relatively wide leeway given to utterances against public figures in the above
case, cinema and television personalities, when it modified the penalty of imprisonment to just a fine of ₱6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of malice. The law
explicitly presumes its existence (malice in law) from the defamatory character of the assailed statement.45 For his
defense, the accused must show that he has a justifiable reason for the defamatory statement even if it was in fact
true.46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the country’s
obligations under the International Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v.
Republic of the Philippines,47 the United Nations Human Rights Committee (UNHRC) cited its General Comment 34 to
the effect that penal defamation laws should include the defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute an all-
encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the condition that the accused
has been prompted in making the statement by good motives and for justifiable ends. Thus:
Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence to the court and
if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and for
justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the
imputation shall have been made against Government employees with respect to facts related to the discharge of their
official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It simply suggested
that defamation laws be crafted with care to ensure that they do not stifle freedom of expression.48 Indeed, the ICCPR
states that although everyone should enjoy freedom of expression, its exercise carries with it special duties and
responsibilities. Free speech is not absolute. It is subject to certain restrictions, as may be necessary and as may be
provided by law.49

The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that the government
has an obligation to protect private individuals from defamation. Indeed, cyberlibel is actually not a new crime since
Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4) above merely
affirms that online defamation constitutes "similar means" for committing libel.

But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous statement or
article. Cyberlibel brings with it certain intricacies, unheard of when the penal code provisions on libel were enacted.
The culture associated with internet media is distinct from that of print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a sense, they are a world
apart in terms of quickness of the reader’s reaction to defamatory statements posted in cyberspace, facilitated by one-
click reply options offered by the networking site as well as by the speed with which such reactions are disseminated
down the line to other internet users. Whether these reactions to defamatory statement posted on the internet
constitute aiding and abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter that the Court
will deal with next in relation to Section 5 of the law.

Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the commission of
any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the offenses
enumerated in this Act shall be held liable.
Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully abets or aids in
the commission or attempts to commit any of the offenses enumerated as cybercrimes. It suffers from overbreadth,
creating a chilling and deterrent effect on protected expression.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and abetting
sufficiently protects the freedom of expression of "netizens," the multitude that avail themselves of the services of the
internet. He points out that existing laws and jurisprudence sufficiently delineate the meaning of "aiding or abetting" a
crime as to protect the innocent. The Solicitor General argues that plain, ordinary, and common usage is at times
sufficient to guide law enforcement agencies in enforcing the law.51 The legislature is not required to define every
single word contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws. When a person aids or abets
another in destroying a forest,52 smuggling merchandise into the country,53 or interfering in the peaceful picketing of
laborers,54 his action is essentially physical and so is susceptible to easy assessment as criminal in character. These
forms of aiding or abetting lend themselves to the tests of common sense and human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat blurred. The idea of
"aiding or abetting" wrongdoings online threatens the heretofore popular and unchallenged dogmas of cyberspace use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the internet within a year,
translating to about 31 million users.55 Based on a recent survey, the Philippines ranks 6th in the top 10 most engaged
countries for social networking.56 Social networking sites build social relations among people who, for example, share
interests, activities, backgrounds, or real-life connections.57

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with shared interests
use Facebook to get in touch.58 Users register at this site, create a personal profile or an open book of who they are,
add other users as friends, and exchange messages, including automatic notifications when they update their profile.59
A user can post a statement, a photo, or a video on Facebook, which can be made visible to anyone, depending on the
user’s privacy settings.

If the post is made available to the public, meaning to everyone and not only to his friends, anyone on Facebook can
react to the posting, clicking any of several buttons of preferences on the program’s screen such as "Like," "Comment,"
or "Share." "Like" signifies that the reader likes the posting while "Comment" enables him to post online his feelings or
views about the same, such as "This is great!" When a Facebook user "Shares" a posting, the original "posting" will
appear on his own Facebook profile, consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its users to send and
read short text-based messages of up to 140 characters. These are known as "Tweets." Microblogging is the practice of
posting small pieces of digital content—which could be in the form of text, pictures, links, short videos, or other media—
on the internet. Instead of friends, a Twitter user has "Followers," those who subscribe to this particular user’s posts,
enabling them to read the same, and "Following," those whom this particular user is subscribed to, enabling him to read
their posts. Like Facebook, a Twitter user can make his tweets available only to his Followers, or to the general public. If
a post is available to the public, any Twitter user can "Retweet" a given posting. Retweeting is just reposting or
republishing another person’s tweet without the need of copying and pasting it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the blog service
provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the internet café that may have
provided the computer used for posting the blog; e) the person who makes a favorable comment on the blog; and f) the
person who posts a link to the blog site.60 Now, suppose Maria (a blogger) maintains a blog on WordPress.com (blog
service provider). She needs the internet to access her blog so she subscribes to Sun Broadband (Internet Service
Provider).

One day, Maria posts on her internet account the statement that a certain married public official has an illicit affair with
a movie star. Linda, one of Maria’s friends who sees this post, comments online, "Yes, this is so true! They are so
immoral." Maria’s original post is then multiplied by her friends and the latter’s friends, and down the line to friends of
friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes across this blog, finds it interesting
and so shares the link to this apparently defamatory blog on her Twitter account. Nena’s "Followers" then "Retweet" the
link to that blog site.

Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and posts this on her
Facebook account. Immediately, Pamela’s Facebook Friends start Liking and making Comments on the assailed posting.
A lot of them even press the Share button, resulting in the further spread of the original posting into tens, hundreds,
thousands, and greater postings.

The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on it, or "Sharing"
it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if Nestor places on the office bulletin
board a small poster that says, "Armand is a thief!," he could certainly be charged with libel. If Roger, seeing the poster,
writes on it, "I like this!," that could not be libel since he did not author the poster. If Arthur, passing by and noticing the
poster, writes on it, "Correct!," would that be libel? No, for he merely expresses agreement with the statement on the
poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world is a crime.

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and his Friends or
Followers, availing themselves of any of the "Like," "Comment," and "Share" reactions, be guilty of aiding or abetting
libel? And, in the complex world of cyberspace expressions of thoughts, when will one be liable for aiding or abetting
cybercrimes? Where is the venue of the crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are
essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original posting.
Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or thousands of
responding "Friends" or "Followers" in the criminal charge to be filed in court, who will make a choice as to who should
go to jail for the outbreak of the challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to
cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique circumstances and
culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in
violation of their constitutionally-guaranteed right to freedom of expression.

The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union,61 a case involving the
constitutionality of the Communications Decency Act of 1996. The law prohibited (1) the knowing transmission, by
means of a telecommunications device, of

"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use of an interactive
computer service to send to a specific person or persons under 18 years of age or to display in a manner available to a
person under 18 years of age communications that, in context, depict or describe, in terms "patently offensive" as
measured by contemporary community standards, sexual or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendment’s guarantee of freedom of speech for
being overbroad. The U.S. Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter of special concern for
two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a regulation raises special
U.S. Const. amend. I concerns because of its obvious chilling effect on free speech. Second, the CDA is a criminal statute.
In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with penalties including
up to two years in prison for each act of violation. The severity of criminal sanctions may well cause speakers to remain
silent rather than communicate even arguably unlawful words, ideas, and images. As a practical matter, this increased
deterrent effect, coupled with the risk of discriminatory enforcement of vague regulations, poses greater U.S. Const.
amend. I concerns than those implicated by certain civil regulations.

xxxx

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great threat of censoring speech that, in
fact, falls outside the statute's scope. Given the vague contours of the coverage of the statute, it unquestionably silences
some speakers whose messages would be entitled to constitutional protection. That danger provides further reason for
insisting that the statute not be overly broad. The CDA’s burden on protected speech cannot be justified if it could be
avoided by a more carefully drafted statute. (Emphasis ours)

Libel in the cyberspace can of course stain a person’s image with just one click of the mouse. Scurrilous statements can
spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes hand in hand with cyberbullying
that oppresses the victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a governmental
purpose, which seeks to regulate the use of this cyberspace communication technology to protect a person’s reputation
and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the area of protected
freedoms.62

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users will suppress
otherwise robust discussion of public issues. Democracy will be threatened and with it, all liberties. Penal laws should
provide reasonably clear guidelines for law enforcement officials and triers of facts to prevent arbitrary and
discriminatory enforcement.63 The terms "aiding or abetting" constitute broad sweep that generates chilling effect on
those who express themselves through cyberspace posts, comments, and other messages.64 Hence, Section 5 of the
cybercrime law that punishes "aiding or abetting" libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-vagueness
doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As Justice Antonio T. Carpio
explained in his dissent in Romualdez v. Commission on Elections,65 "we must view these statements of the Court on
the inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate only insofar as these
doctrines are used to mount ‘facial’ challenges to penal statutes not involving free speech."

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any constitutional
ground – absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness. Here,
one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. It prohibits one from
assailing the constitutionality of the statute based solely on the violation of the rights of third persons not before the
court. This rule is also known as the prohibition against third-party standing.66

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the constitutionality of a
statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on
grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes from statutes violating
free speech. A person who does not know whether his speech constitutes a crime under an overbroad or vague law may
simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or vague law thus chills
him into silence.67

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable that any
government threat of punishment regarding certain uses of the medium creates a chilling effect on the constitutionally-
protected freedom of expression of the great masses that use it. In this case, the particularly complex web of interaction
on social media websites would give law enforcers such latitude that they could arbitrarily or selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it? Netizens
are not given "fair notice" or warning as to what is criminal conduct and what is lawful conduct. When a case is filed,
how will the court ascertain whether or not one netizen’s comment aided and abetted a cybercrime while another
comment did not?

Of course, if the "Comment" does not merely react to the original posting but creates an altogether new defamatory
story against Armand like "He beats his wife and children," then that should be considered an original posting published
on the internet. Both the penal code and the cybercrime law clearly punish authors of defamatory publications. Make no
mistake, libel destroys reputations that society values. Allowed to cascade in the internet, it will destroy relationships
and, under certain circumstances, will generate enmity and tension between social or economic groups, races, or
religions, exacerbating existing tension in their relationships.

In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child pornography
and facilitates the completion of transactions involving the dissemination of child pornography," does this make Google
and its users aiders and abettors in the commission of child pornography crimes?68 Byars highlights a feature in the
American law on child pornography that the Cybercrimes law lacks—the exemption of a provider or notably a plain user
of interactive computer service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information
provided by another information content provider and cannot be held civilly liable for any action voluntarily taken in
good faith to restrict access to or availability of material that the provider or user considers to be obscene...whether or
not such material is constitutionally protected.69

When a person replies to a Tweet containing child pornography, he effectively republishes it whether wittingly or
unwittingly. Does this make him a willing accomplice to the distribution of child pornography? When a user downloads
the Facebook mobile application, the user may give consent to Facebook to access his contact details. In this way,
certain information is forwarded to third parties and unsolicited commercial communication could be disseminated on
the basis of this information.70 As the source of this information, is the user aiding the distribution of this
communication? The legislature needs to address this clearly to relieve users of annoying fear of possible criminal
prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part of internet
users because of its obvious chilling effect on the freedom of expression, especially since the crime of aiding or abetting
ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners point out, formal crimes
such as libel are not punishable unless consummated.71 In the absence of legislation tracing the interaction of netizens
and their level of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3)
on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted to apply to
Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section
4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1)
on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity
Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of the freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable. A hacker
may for instance have done all that is necessary to illegally access another party’s computer system but the security
employed by the system’s lawful owner could frustrate his effort. Another hacker may have gained access to usernames
and passwords of others but fail to use these because the system supervisor is alerted.72 If Section 5 that punishes any
person who willfully attempts to commit this specific offense is not upheld, the owner of the username and password
could not file a complaint against him for attempted hacking. But this is not right. The hacker should not be freed from
liability simply because of the vigilance of a lawful owner or his supervisor.

Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While this may be true
with respect to cybercrimes that tend to sneak past the area of free expression, any attempt to commit the other acts
specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section
4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and abetting the commission of
such acts can be identified with some reasonable certainty through adroit tracking of their works. Absent concrete proof
of the same, the innocent will of course be spared.

Section 6 of the Cybercrime Law

Section 6 provides:

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by,
through and with the use of information and communications technologies shall be covered by the relevant provisions
of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the
Revised Penal Code, as amended, and special laws, as the case may be.

Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As the Solicitor
General points out, there exists a substantial distinction between crimes committed through the use of information and
communications technology and similar crimes committed using other means. In using the technology in question, the
offender often evades identification and is able to reach far more victims or cause greater harm. The distinction,
therefore, creates a basis for higher penalties for cybercrimes.

Section 7 of the Cybercrime Law

Section 7 provides:

Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation
of any provision of the Revised Penal Code, as amended, or special laws.

The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of acts may be
prosecuted and penalized simultaneously under two laws, a special law and the Revised Penal Code. When two different
laws define two crimes, prior jeopardy as to one does not bar prosecution of the other although both offenses arise
from the same fact, if each crime involves some important act which is not an essential element of the other.74 With the
exception of the crimes of online libel and online child pornography, the Court would rather leave the determination of
the correct application of Section 7 to actual cases.
Online libel is different. There should be no question that if the published material on print, said to be libelous, is again
posted online or vice versa, that identical material cannot be the subject of two separate libels. The two offenses, one a
violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A. 10175 involve
essentially the same elements and are in fact one and the same offense. Indeed, the OSG itself claims that online libel
under Section 4(c)(4) is not a new crime but is one already punished under Article 353. Section 4(c)(4) merely establishes
the computer system as another means of publication.75 Charging the offender under both laws would be a blatant
violation of the proscription against double jeopardy.76

The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPA’s scope so as to
include identical activities in cyberspace. As previously discussed, ACPA’s definition of child pornography in fact already
covers the use of "electronic, mechanical, digital, optical, magnetic or any other means." Thus, charging the offender
under both Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the constitutional prohibition
against double jeopardy.

Section 8 of the Cybercrime Law

Section 8 provides:

Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) of this
Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) up to a maximum amount commensurate to the damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prision
mayor or a fine of not more than Five hundred thousand pesos (Ph₱500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or a fine
of at least Five hundred thousand pesos (Ph₱500,000.00) up to maximum amount commensurate to the damage
incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished with
imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (Ph₱200,000.00) but not exceeding
One million pesos (Ph₱1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punished with
the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided, That the
penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 9775, if committed
through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished with
imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (Ph₱50,000.00) but not exceeding Two hundred
fifty thousand pesos (Ph₱250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with imprisonment one
(1) degree lower than that of the prescribed penalty for the offense or a fine of at least One hundred thousand pesos
(Ph₱100,000.00) but not exceeding Five hundred thousand pesos (Ph₱500,000.00) or both.
Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the Confidentiality,
Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of
Devices; when the crime punishable under 4(a) is committed against critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2)
on Child Pornography; 4(c)(3) on Unsolicited Commercial Communications; and Section 5 on Aiding or Abetting, and
Attempt in the Commission of Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the legislature
prescribed a measure of severe penalties for what it regards as deleterious cybercrimes. They appear proportionate to
the evil sought to be punished. The power to determine penalties for offenses is not diluted or improperly wielded
simply because at some prior time the act or omission was but an element of another offense or might just have been
connected with another crime.77 Judges and magistrates can only interpret and apply them and have no authority to
modify or revise their range as determined by the legislative department.

The courts should not encroach on this prerogative of the lawmaking body.78

Section 12 of the Cybercrime Law

Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to
collect or record by technical or electronic means traffic data in real-time associated with specified communications
transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying
service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the
above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and the
examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that
there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is
being committed, or is about to be committed; (2) that there are reasonable grounds to believe that evidence that will
be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such
crimes; and (3) that there are no other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in real time as
tending to curtail civil liberties or provide opportunities for official abuse. They claim that data showing where digital
messages come from, what kind they are, and where they are destined need not be incriminating to their senders or
recipients before they are to be protected. Petitioners invoke the right of every individual to privacy and to be protected
from government snooping into the messages or information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may require the
disclosure of matters normally considered private but then only upon showing that such requirement has a rational
relation to the purpose of the law,79 that there is a compelling State interest behind the law, and that the provision
itself is narrowly drawn.80 In assessing regulations affecting privacy rights, courts should balance the legitimate
concerns of the State against constitutional guarantees.81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put order to the
tremendous activities in cyberspace for public good.82 To do this, it is within the realm of reason that the government
should be able to monitor traffic data to enhance its ability to combat all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to provide law
enforcement authorities with the power they need for spotting, preventing, and investigating crimes committed in
cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno points out, the Budapest Convention on
Cybercrimes requires signatory countries to adopt legislative measures to empower state authorities to collect or record
"traffic data, in real time, associated with specified communications."83 And this is precisely what Section 12 does. It
empowers law enforcement agencies in this country to collect or record such data.

But is not evidence of yesterday’s traffic data, like the scene of the crime after it has been committed, adequate for
fighting cybercrimes and, therefore, real-time data is superfluous for that purpose? Evidently, it is not. Those who
commit the crimes of accessing a computer system without right,84 transmitting viruses,85 lasciviously exhibiting sexual
organs or sexual activity for favor or consideration;86 and producing child pornography87 could easily evade detection
and prosecution by simply moving the physical location of their computers or laptops from day to day. In this digital age,
the wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places that provide free
internet services, and from unregistered mobile internet connectors. Criminals using cellphones under pre-paid
arrangements and with unregistered SIM cards do not have listed addresses and can neither be located nor identified.
There are many ways the cyber criminals can quickly erase their tracks. Those who peddle child pornography could use
relays of computers to mislead law enforcement authorities regarding their places of operations. Evidently, it is only
real-time traffic data collection or recording and a subsequent recourse to court-issued search and seizure warrant that
can succeed in ferreting them out.

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. Mutuc88 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.
As the Solicitor General points out, an ordinary ICT user who courses his communication through a service provider,
must of necessity disclose to the latter, a third person, the traffic data needed for connecting him to the recipient ICT
user. For example, an ICT user who writes a text message intended for another ICT user must furnish his service provider
with his cellphone number and the cellphone number of his recipient, accompanying the message sent. It is this
information that creates the traffic data. Transmitting communications is akin to putting a letter in an envelope properly
addressed, sealing it closed, and sending it through the postal service. Those who post letters have no expectations that
no one will read the information appearing outside the envelope.

Computer data—messages of all kinds—travel across the internet in packets and in a way that may be likened to parcels
of letters or things that are sent through the posts. When data is sent from any one source, the content is broken up into
packets and around each of these packets is a wrapper or header. This header contains the traffic data: information that
tells computers where the packet originated, what kind of data is in the packet (SMS, voice call, video, internet chat
messages, email, online browsing data, etc.), where the packet is going, and how the packet fits together with other
packets.93 The difference is that traffic data sent through the internet at times across the ocean do not disclose the
actual names and addresses (residential or office) of the sender and the recipient, only their coded internet protocol (IP)
addresses. The packets travel from one computer system to another where their contents are pieced back together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages and uncover the
identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service provider’s communication’s system
will put his voice message into packets and send them to the other person’s cellphone where they are refitted together
and heard. The latter’s spoken reply is sent to the caller in the same way. To be connected by the service provider, the
sender reveals his cellphone number to the service provider when he puts his call through. He also reveals the cellphone
number to the person he calls. The other ways of communicating electronically follow the same basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that telephone users
in the ‘70s must realize that they necessarily convey phone numbers to the telephone company in order to complete a
call. That Court ruled that even if there is an expectation that phone numbers one dials should remain private, such
expectation is not one that society is prepared to recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with one another over
cyberspace except through some service providers to whom they must submit certain traffic data that are needed for a
successful cyberspace communication. The conveyance of this data takes them out of the private sphere, making the
expectation to privacy in regard to them an expectation that society is not prepared to recognize as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic data are gathered
in bulk, pooled together, and analyzed, they reveal patterns of activities which can then be used to create profiles of the
persons under surveillance. With enough traffic data, analysts may be able to determine a person’s close associations,
religious views, political affiliations, even sexual preferences. Such information is likely beyond what the public may
expect to be disclosed, and clearly falls within matters protected by the right to privacy. But has the procedure that
Section 12 of the law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or electronic
means traffic data in real-time. Petitioners point out that the phrase "due cause" has no precedent in law or
jurisprudence and that whether there is due cause or not is left to the discretion of the police. Replying to this, the
Solicitor General asserts that Congress is not required to define the meaning of every word it uses in drafting the law.

Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime law, dealing
with a novel situation, fails to hint at the meaning it intends for the phrase "due cause." The Solicitor General suggests
that "due cause" should mean "just reason or motive" and "adherence to a lawful procedure." But the Court cannot
draw this meaning since Section 12 does not even bother to relate the collection of data to the probable commission of
a particular crime. It just says, "with due cause," thus justifying a general gathering of data. It is akin to the use of a
general search warrant that the Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used. Will the law enforcement
agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be used to build up a case against an
identified suspect? Can the data be used to prevent cybercrimes from happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that
traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly, nothing
can prevent law enforcement agencies holding these data in their hands from looking into the identity of their sender or
receiver and what the data contains. This will unnecessarily expose the citizenry to leaked information or, worse, to
extortion from certain bad elements in these agencies.

Section 12, of course, limits the collection of traffic data to those "associated with specified communications." But this
supposed limitation is no limitation at all since, evidently, it is the law enforcement agencies that would specify the
target communications. The power is virtually limitless, enabling law enforcement authorities to engage in "fishing
expedition," choosing whatever specified communication they want. This evidently threatens the right of individuals to
privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real time" because it is
not possible to get a court warrant that would authorize the search of what is akin to a "moving vehicle." But
warrantless search is associated with a police officer’s determination of probable cause that a crime has been
committed, that there is no opportunity for getting a warrant, and that unless the search is immediately carried out, the
thing to be searched stands to be removed. These preconditions are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet users and that
the procedure envisioned by the law could be better served by providing for more robust safeguards. His bare assurance
that law enforcement authorities will not abuse the provisions of Section 12 is of course not enough. The grant of the
power to track cyberspace communications in real time and determine their sources and destinations must be narrowly
drawn to preclude abuses.95

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness doctrine and the
overbreadth doctrine. These doctrines however, have been consistently held by this Court to apply only to free speech
cases. But Section 12 on its own neither regulates nor punishes any type of speech. Therefore, such analysis is
unnecessary.

This Court is mindful that advances in technology allow the government and kindred institutions to monitor individuals
and place them under surveillance in ways that have previously been impractical or even impossible. "All the forces of a
technological age x x x operate to narrow the area of privacy and facilitate intrusions 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."96 The Court must ensure that laws seeking to take advantage of these technologies be written with
specificity and definiteness as to ensure respect for the rights that the Constitution guarantees.

Section 13 of the Cybercrime Law

Section 13 provides:
Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information relating to
communication services provided by a service provider shall be preserved for a minimum period of six (6) months from
the date of the transaction. Content data shall be similarly preserved for six (6) months from the date of receipt of the
order from law enforcement authorities requiring its preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once computer
data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere furnishing to such
service provider of the transmittal document to the Office of the Prosecutor shall be deemed a notification to preserve
the computer data until the termination of the case.

The service provider ordered to preserve computer data shall keep confidential the order and its compliance.

Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to property. They liken
the data preservation order that law enforcement authorities are to issue as a form of garnishment of personal property
in civil forfeiture proceedings. Such order prevents internet users from accessing and disposing of traffic data that
essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors or recipients and are
to be considered private communications. But it is not clear that a service provider has an obligation to indefinitely keep
a copy of the same as they pass its system for the benefit of users. By virtue of Section 13, however, the law now
requires service providers to keep traffic data and subscriber information relating to communication services for at least
six months from the date of the transaction and those relating to content data for at least six months from receipt of the
order for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so minded. The service
provider has never assumed responsibility for their loss or deletion while in its keep.

At any rate, as the Solicitor General correctly points out, the data that service providers preserve on orders of law
enforcement authorities are not made inaccessible to users by reason of the issuance of such orders. The process of
preserving data will not unduly hamper the normal transmission or use of the same.

Section 14 of the Cybercrime Law

Section 14 provides:

Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant, shall issue an
order requiring any person or service provider to disclose or submit subscriber’s information, traffic data or relevant
data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a valid
complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the purpose
of investigation.

The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners’ objection is that the
issuance of subpoenas is a judicial function. But it is well-settled that the power to issue subpoenas is not exclusively a
judicial function. Executive agencies have the power to issue subpoena as an adjunct of their investigatory powers.98

Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function usually lodged in
the hands of law enforcers to enable them to carry out their executive functions. The prescribed procedure for
disclosure would not constitute an unlawful search or seizure nor would it violate the privacy of communications and
correspondence. Disclosure can be made only after judicial intervention.

Section 15 of the Cybercrime Law

Section 15 provides:

Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is properly issued,
the law enforcement authorities shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or computer and communications
network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning of
the computer system and the measures to protect and preserve the computer data therein to provide, as is reasonable,
the necessary information, to enable the undertaking of the search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of the computer data
storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of
approval by the court.

Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure procedures. On
its face, however, Section 15 merely enumerates the duties of law enforcement authorities that would ensure the
proper collection, preservation, and use of computer system or data that have been seized by virtue of a court warrant.
The exercise of these duties do not pose any threat on the rights of the person from whom they were taken. Section 15
does not appear to supersede existing search and seizure rules but merely supplements them.

Section 17 of the Cybercrime Law

Section 17 provides:
Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13 and 15, service
providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the computer
data subject of a preservation and examination.

Section 17 would have the computer data, previous subject of preservation or examination, destroyed or deleted upon
the lapse of the prescribed period. The Solicitor General justifies this as necessary to clear up the service provider’s
storage systems and prevent overload. It would also ensure that investigations are quickly concluded.

Petitioners claim that such destruction of computer data subject of previous preservation or examination violates the
user’s right against deprivation of property without due process of law. But, as already stated, it is unclear that the user
has a demandable right to require the service provider to have that copy of the data saved indefinitely for him in its
storage system. If he wanted them preserved, he should have saved them in his computer when he generated the data
or received it. He could also request the service provider for a copy before it is deleted.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer data:

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie found to be in violation
of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against unreasonable
searches and seizures. The Solicitor General concedes that this provision may be unconstitutional. But since laws enjoy a
presumption of constitutionality, the Court must satisfy itself that Section 19 indeed violates the freedom and right
mentioned.

Computer data99 may refer to entire programs or lines of code, including malware, as well as files that contain texts,
images, audio, or video recordings. Without having to go into a lengthy discussion of property rights in the digital space,
it is indisputable that computer data, produced or created by their writers or authors may constitute personal property.
Consequently, they are protected from unreasonable searches and seizures, whether while stored in their personal
computers or in the service provider’s systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable. Further, it states that no
search warrant shall issue except upon probable cause to be determined personally by the judge. Here, the
Government, in effect, seizes and places the computer data under its control and disposition without a warrant. The
Department of Justice order cannot substitute for judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction on the
freedom of expression over cyberspace. Certainly not all forms of speech are protected. Legislature may, within
constitutional bounds, declare certain kinds of expression as illegal. But for an executive officer to seize content alleged
to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such content violates
some law, for to do so would make him judge, jury, and executioner all rolled into one.100

Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines established
to determine the validity of restrictions on speech. Restraints on free speech are generally evaluated on one of or a
combination of three tests: the dangerous tendency doctrine, the balancing of interest test, and the clear and present
danger rule.101 Section 19, however, merely requires that the data to be blocked be found prima facie in violation of
any provision of the cybercrime law. Taking Section 6 into consideration, this can actually be made to apply in relation to
any penal provision. It does not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional guarantees to
freedom of expression and against unreasonable searches and seizures.

Section 20 of the Cybercrime Law

Section 20 provides:

Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the orders from law
enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of prision
correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for each and
every noncompliance with an order issued by law enforcement authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere failure to comply
constitutes a legislative finding of guilt, without regard to situations where non-compliance would be reasonable or
valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.) 1829,102 Section 20
necessarily incorporates elements of the offense which are defined therein. If Congress had intended for Section 20 to
constitute an offense in and of itself, it would not have had to make reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or
both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following
acts:

x x x.

Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully." There must still be a
judicial determination of guilt, during which, as the Solicitor General assumes, defense and justifications for non-
compliance may be raised. Thus, Section 20 is valid insofar as it applies to the provisions of Chapter IV which are not
struck down by the Court.

Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:

Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty (30) days from the
effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation and Coordinating Center (CICC),
under the administrative supervision of the Office of the President, for policy coordination among concerned agencies
and for the formulation and enforcement of the national cybersecurity plan.
Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time commission of cybercrime
offenses through a computer emergency response team (CERT); x x x.

Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime Investigation and
Coordinating Center (CICC) the power to formulate a national cybersecurity plan without any sufficient standards or
parameters for it to follow.

In order to determine whether there is undue delegation of legislative power, the Court has adopted two tests: the
completeness test and the sufficient standard test. Under the first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it reaches the delegate, the only thing he will have to do is to
enforce it.1avvphi1 The second test mandates adequate guidelines or limitations in the law to determine the boundaries
of the delegate’s authority and prevent the delegation from running riot.103

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a national
cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training, best practices,
assurance and technologies that can be used to protect cyber environment and organization and user’s assets.104 This
definition serves as the parameters within which CICC should work in formulating the cybersecurity plan.

Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent and combat such
[cyber] offenses by facilitating their detection, investigation, and prosecution at both the domestic and international
levels, and by providing arrangements for fast and reliable international cooperation."105 This policy is clearly adopted
in the interest of law and order, which has been considered as sufficient standard.106 Hence, Sections 24 and 26(a) are
likewise valid.

WHEREFORE, the Court DECLARES:

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time; and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block access to suspected
Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet in bad faith to the prejudice
of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying information belonging to another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or sexual activity for favor or
consideration;

f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under the Revised Penal Code are
committed with the use of information and communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to preserve traffic data and
subscriber information as well as specified content data for six months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data under a court-issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data after the expiration of the
prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations;

n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC);

o. Section 26(a) that defines the CICC’s Powers and Functions; and

p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original author of the
post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as VA L I D and
CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section
4(a)(3) on Data Interference, Section 4(a)(4) on System

Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-
related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and
Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on Child Pornography,
4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on online Libel.1âwphi1

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that authorizes
prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to actual cases, WITH THE
EXCEPTION of the crimes of:

1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and Article 353 of the
Revised Penal Code constitutes a violation of the proscription against double jeopardy; as well as

2. Child pornography committed online as to which, charging the offender under both Section 4(c)(2) of Republic Act
10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a violation of the same
proscription, and, in respect to these, is VOID and UNCONSTITUTIONAL.

SO ORDERED.

ROBERTO A. ABAD

Associate Justice