Administrative agencies increasingly rely on technology to achieve substantive goals. Often this technology is employed to collect, exchange, manipulate and store personally identifiable information, raising serious concerns about the erosion of personal privacy.

Congress has recognized this problem. In the E-Government Act of 2002, it required administrative agencies to conduct privacy impact assessments (PIAs) when developing or procuring technology systems that handle personal information. Despite this new requirement, however, agency adherence to privacy mandates is highly inconsistent.

In this paper, we ask why. We first explore why both process requirements and traditional means of political oversight are often weak tools for ensuring that policy reflects privacy commitments. We then consider what factors might, by contrast, promote agency consideration of privacy concerns.

Specifically, we compare decisions by two federal agencies - the Department of State and the Department of Homeland Security - to use RFID technology, which allows a wireless-access data chip to be attached to or inserted into a product, animal, or person. These two cases suggest the importance of internal agency structure, culture, and personnel, as well as alternative forms of external oversight, interest group engagement, and professional expertise, as important mechanisms for ensuring bureaucratic accountability to the secondary privacy mandate imposed by Congress.

The analysis speaks to debates in both public administration and privacy protection. It implicates disputes over the efficacy of external controls on bureaucracy, and the less-developed literature on opening the black box of administrative decisionmaking. It further offers insight into pre-conditions necessary to advance privacy commitments in the face of social and bureaucratic pressure to manage risk by collecting information about individuals. Finally, it offers specific proposals for policy reform intended to promote agency accountability to privacy goals.

The benefits of overseas outsourcing have come at a cost. Americans enjoy unprecedented levels of safety and security in the domestically-produced goods they use, food and drugs they ingest, and services they employ. Yet as U.S. firms increase the efficiency of their production, become more competitive globally, and offer better price-quality combinations to their customers by contracting with foreign companies for the production of goods and the provision of services, the mix of economic, legal, and societal forces that serve to protect consumers changes. Widespread revelations of Chinese-manufactured toxic toys and toothpaste, tainted food and drugs from abroad, and the failure of foreign call centers to protect the privacy of U.S. consumer data all illustrate the challenge for domestic governance. Though international trade in goods and services provides clear economic benefits, it can also frustrate consumer protection efforts. This paper provides a conceptual framework for understanding the mix of regulatory elements that govern domestic production of goods and services, and for understanding the ways in which international trade changes that mix. Specifically, it distinguishes between two types of domestic regulation—the first targeting the process by which goods are produced and services provided, and the second mandating particular outcomes. Foreign production disables the first type of regulation and weakens the second. Protecting domestic consumers in a globalized market, then, will frequently require the development of “substitutes” – including regulation by foreign governments and private regulators — for domestic forms of governance that are ineffective abroad. We propose a novel and necessary solution for addressing the threat posed by the foreign production of goods and provision of services to consumer welfare. Specifically, we make the case that the best “substitute” for domestic regulation will often be oversight of safety issues by U.S. partners in global trade. To provide incentives to domestic firms U.S. regulators should make those firms legally accountable for harmful products that make it to the United States Furthermore, they regulations should discriminate between domestic and foreign activity in regulation requiring safe outcomes, imposing higher penalties for violations of safety norms when production has taken place abroad.

Abstract

Modernizing Rulemaking in Philippine Administrative Law:

Drawing Lessons from the United States

by

Jose Arturo Cagampang de Castro

Doctor of Juridical Science

University of California, Berkeley

Professor Kenneth A. Bamberger, Chair

Administrative rulemaking as currently practiced by agencies in the Philippine administrative bureaucracy is beset by a host of recurring issues that reflect the remnants of an outdated, autocratic rulemaking system that is in dire need of much-needed reform. Although the Philippines has, since 1987, adopted the statutory baseline procedures for agency rulemaking, there is as yet no one-to-one correspondence between what is prescribed by law, and what is actually practiced by agencies.

This work addresses the problematic nature of Philippine rulemaking by filling in its statutory interstices and doctrinal gaps with pertinent lessons from the United States (U.S.). This approach to the problem is supported by several findings. Owing to the shared history between the two nations, their respective systems of public and administrative law have many similarities. Philippine courts have in many cases adopted US case doctrines in the Philippine setting. They could thus very well do the same for agency rulemaking, which is an area of US administrative law that is robustly developed with judicial gloss. At the statutory level, the laws on administrative rulemaking procedure in both countries provide for (a) notice, (b) hearing, and (c) publication of legislative rules as their common foundational backbones. Thus, although the rulemaking provisions of the 1987 RAC are concededly not as detailed as those of the US Administrative Procedure Act (APA), the potential benefits of drawing from US precedents for purposes of modernizing agency rulemaking in the Philippines can be concretely realized.

Chapter 1 of this dissertation provides a background of agency rulemaking as it is currently practiced in the Philippines, and explains why it is problematic. Contemporary examples of problematic rulemaking from the Department of Finance, the Bureau of Internal Revenue, the Philippine National Police, the Bureau of Customs, and the Land Transportation Office are presented to show the recurring ailments of the autocratic rulemaking practices being used in the Philippines. The ramifications of these rulemaking practices within and outside the Philippines are also discussed.

Chapter 2 of this work delves into the history and development of Philippine administrative law, including its roots and origins from the US, in order to clarify the connections and similarities between the two jurisdictions. The shared history between the two countries supports the propriety of mining US administrative law and policy for purposes of modernizing Philippine administrative law and rulemaking. This chapter also reveals how the current rulemaking practices have been carried over from the pre-1987 era of Philippine administrative law, characterized by the general lack of trans-substantive administrative procedures for agency rulemaking.

Chapter 3 discusses the place of administrative agencies and agency rulemaking in the Philippines. This chapter initially discusses the foundations that justify the existence of administrative agencies; the general concept of what they are, and the different perspectives upon which they are seen; and the legitimacy issues arising from their existence, and their exercise of derivative governmental authority. The different types of administrative agencies in the Philippines—the constitutional agencies, semi-constitutional agencies, and statutorily created agencies—and their respective rulemaking functions, are also discussed. Taking account of their places as governmental actors in the Philippine bureaucracy is particularly important because there are agencies that invariably engage in rulemaking but are exempt from the coverage of the statutory baseline rulemaking procedures under the 1987 RAC.

Chapter 4 presents a modern rulemaking framework for the Philippines, sketched from an overall analysis of the 1987 Philippine Constitution, the 1987 RAC, other relevant Philippine statutes, and Philippine case law, as supplemented in their interstices and doctrinal gaps with pertinent developments from the administrative law of the US

Chapter 5 synthesizes the findings and interconnections of the previous chapters, and presents the conclusions and recommendations of the dissertation. With the objective of setting a concrete path towards realizing the potentials of modern rulemaking in the Philippines, this chapter also provides a summarized list of 8 observations that are recommended for adoption in the Philippines.

Preventing corruption and, particularly, the one initiated from the Public Sector itself, is a shared concern amongst democracies from the OECD. Comparative studies carried out by that international organization have found persuasive arguments in favor of implementing the public policies commonly referred as Declarations of Assets and of Interests. Mexico introduced them into its legal system since 2002 and passed major legal reforms in the 2015-2016 period. Yet, in my opinion, the results in that jurisdiction are, as of today, questionable.The public policies’ rationale argues that corruption in the Public Sector as a whole can be prevented by coercively requiring public officials to periodically declare to the government detailed personal information concerning their wealth’s evolution and potential conflicts of interests. Such information is to be used for two main purposes: (a) enhancing the investigators’ capabilities for detecting potential acts of corruption, especially illicit enrichment, and (b) making mandatory disclosures of what officials declare and of what anticorruption institutions perform, so that democratic accountability upon them can be exerted. Considering intricacies of Mexico’s legal framework, trying to look at the public public policies through the eyes of bureaucracy and drawing from a variety of literature that can be connected using the theory of Responsive Law formulated by Berkeley Law Professors Philippe Nonet & Philip Selznick, I argue that the aforementioned Declarations’ effectiveness could have important improvements in Mexico by exploring three measures: (1) Balancing the values of privacy and governmental transparency; (2) Standardizing investigators’ methods for the verification of what officials declare and the detection of red flags for the initiation of legal cases; (3) Generating public information to evaluate the integrity of officials and the performance of anticorruption institutions. Based on a purposive reading of current statutes’ provisions instead of major legal reforms, I delineate three proposals —one for each measure— aiming to entice speculation and discussion. In this regard, I argue that it is important to bear in mind Mexico’s society context of a generalized use of information technologies, particularly those whose functioning require access to internet, and to expand on the idea that the worldwide access to such technologies —as well as their sophistication— are expected to increase as time passes by.