Published 19 June 2020, The Daily Tribune

The right to privacy is a cherished right. A person engaged in conversation with another, especially if in a private place, has a reasonable expectation that said conversation is not being recorded and will not be divulged to anybody else without the person’s consent.

Of course, the person one is conversing with can gab about it to another person or someone may eavesdrop while the conversation is occurring. Such acts may be at loggerheads with the person’s right to privacy but the wrongdoing does not rise to the level of a criminal offense. It is a crime only when the recording, or interception of the conversation may be classified as “wiretapping.”

The Anti-Wiretapping Law (Republic Act 4200) has been around for decades but given the vast improvements in technology, it can be said that the means by which wiretapping can be accomplished would have now expanded tenfold.

RA 4200 made it unlawful “for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described…”

The key phrase is “any other device or arrangement”. In the landmark case of Gaanan v IAC (G.R. 69809, 16 October 1986), the Supreme Court said that an extension phone is not one such device.

Therefore, it appears that even though one of the parties to a conversation was not aware or did not consent to anyone else listening in through a phone extension, said act cannot be considered an act of wiretapping.

Said the Supreme Court: “There must be either a physical interruption through a wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept, or record the spoken words… An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices enumerated in Section 1 of RA 4200 as the use thereof cannot be considered as “tapping” the wire or cable of a telephone line. The telephone extension in this case was not installed for that purpose”. (Underscoring supplied.)

The court then went on to explain: “…the phrase ‘device or arrangement’ in Section 1 of RA 4200, although not exclusive to that enumerated therein, should be construed to comprehend instruments of the same or similar nature, that is, instruments the use of which would be tantamount to tapping the main line of a telephone. It refers to instruments whose installation or presence cannot be presumed by the party or parties being overheard because by their very nature, they are not of common usage and their purpose is precisely for tapping, intercepting or recording a telephone conversation.”

The wiretapping though need not always involve a telephone. It can be an actual face to face conversation wherein one party, without the consent of the other, records said conversation through the use of any recording device without the consent of all the participants to the conversation. For instance, if a reporter conducts an interview, said reporter may only record the conversation with the consent of the interviewee.

In one interesting case involving an officer of a government agency, a famous media personality had sought to interview the officer regarding a specific issue. It appears that while the media personality disclosed that the she was recording the conversation, she said that the recording was “for her own personal purposes only.” However, when the media personality’s TV program was aired, it included the taped conversation with government officer.

Thus, while consent was secured for the recording, it was for a limited purpose only, not for the purpose of making the recording public.

When charged with wiretapping, the media personality was acquitted by the trial court so the case never reached the Supreme Court. It would have made a good test case on what “consent” meant under the law.

It is not only the actual wiretapper that is liable under the law. Section 2 of the law states: “Any person who willfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful… or aids, permits, or causes such violation shall, upon conviction thereof, be punished by imprisonment for not less than six months or more than six years and with the accessory penalty of perpetual absolute disqualification from public office if the offender be a public official at the time of the commission of the offense, and, if the offender is an alien he shall be subject to deportation proceedings.

The law understandably provides for an exception. A police officer can secure a written order from the Court to commit any of the acts that would otherwise be considered wiretapping “in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act 616, punishing espionage and other offenses against national security.” (Section 3, RA 4200).

It is noteworthy that court application can only be made for crimes that involve national security and not common offenses. Without a valid court order, any communication obtained through wiretapping cannot be used as evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.

The proposed Anti-Terrorism Bill seeks to carve out a similar exception in regard to surveillance of suspects (of acts of terrorism) and interception of their communications. The proposed bill authorizes any law enforcement officer or the member of the military authorized by the Anti-Terrorism Council to file the necessary application with the Court of Appeals. Telecommunication Service Providers (TSP) and Internet Service Providers (ISP) may be compelled by the Court to produce all customer information and identification records as well as call and text data records content, and all other cellular or internet metadata of any person suspected of any of the crimes of terrorism defined under the proposed measure. As the relevant regulatory agency, the National Telecommunications Commission is required to be furnished a copy of the application.

Concerns have been raised about possible abuse of the provisions of the new bill, including this one allowing wiretapping. Should the bill be signed into law, certain quarters may question its validity, which then provides the Supreme Court with another opportunity to delineate the citizen’s cherished right to privacy.

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