(the EXPANDED ANTI-WIRETAPPING ACT OF 2016)
Mr. President, fellow members of this august chamber, I have the honor to report on the Senate floor Senate Bill No. 1210, entitled “An Act Expanding the Scope and Coverage of Republic Act No. 4200, otherwise known as an Act to Prohibit and Penalize Wire Tapping and other Related Violations of the Privacy of Communication, and for Other Purposes,” as embodied in Committee Report No. 4, in substitution of Senate Bills 21, 48, 871 and 950.
Mr. President, the right to privacy was indubitably recognized in Morfe vs. Mutuc, and is now part of Philippines jurisprudence:
“The constitutional right to privacy has come into its own. xxx The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection.”
[Read: Senate Bill 1210, Expanded Anti-Wire Tapping Act of 2016]
On June 19, 1965, Congress enacted Republic Act No. 4200, otherwise known as the Anti-Wiretapping Law, in order to safeguard the constitutional right to privacy of communication.
The law prohibits the tapping of any wire or cable, or using other devices to record, intercept, or secretly overhear any private communication or spoken word when it is not authorized by any one of the parties in the conversation, except when it is done pursuant to a court order after compliance with all the requirements set forth by the law.
A perusal of Section 1 of RA 4200 makes mention of tapping wires or cables through the use of dictaphone, walkie-talkie or tape recorder. I need not specify them all. One thing is apodictic. Both means of communications and means of intrusion, by way of exemption, are all outdated. Luma na, laos pa, Mr. President.
With considerable advances in technology, our laws should be adaptive and responsive thus calling for the need to amend our 51-year-old Anti-Wiretapping Law. Mas matanda pang ‘di hamak sa mga kasama nating mga batang senador sa 17th Congress ang Batas ng Republika bilang 4200.
Emanating from the ease of communications in the contemporary era are organized crimes perpetrated through means of communications that are beyond the coverage of our existing law on wiretapping.
Let’s take for example the recent Paris terror attack that left 132 persons dead. Though according to reports, there’s no hard evidence that the attackers used a Sony PlayStation console to plan said attack, experts say that it offers the perfect secure means of communication. In fact, it is so hard to track considering that communications can be sent in different formats. In a statement issued by Sony Inc., it said, “PlayStation 4 allows for communication amongst friends and fellow gamers and, in common with all modern connected devices, this has the potential to be abused.”
Back in the days, we watched our kids play with Atari or Family Computers. Now, who would have thought that just an updated modern version of gaming consoles could possibly pave the way for terrorism or other organized crimes? Ganyan na po ang technology today, Mahal na Pangulo.
Since our law enforcement agencies have gained momentum on the fight against illegal drugs, let me call your attention to a statement issued by the 2015 International Narcotics Control Strategy Report of the US Department of State acknowledging that the lack of legislation authorizing judicial wiretapping for drug cases and the lack of reform in the criminal justice system will continue to hamper efforts against international drug trafficking organizations from exploiting the Philippines as a transshipment point and market for illegal drugs.
With that in mind, this representation, together with Senators Greg Honasan, Grace Poe and Sonny Angara are saying that it is time to amend the Anti-Wiretapping Act.
Today, I stand here to sponsor the “Expanded Anti-Wiretapping Act of 2016.”
I would like to describe this measure as comprehensive. However, mere mention of the word comprehensive will definitely raise eyebrows. Let me assure you, with the numerous pronouncements already made by the Supreme Court, the right to privacy shall always be inviolable. Having said so, I beg the kind indulgence of everybody in this hall and keep in mind that the respect for private lives of individuals still remains as the overall context of the Expanded Anti-Wiretapping Act of 2016.
When presenting two opposing news, Filipinos would always ask first, “Ano ang una mong gustong marinig, good news o bad news?” and usually people would rather hear the bad news first. In our case, I would like to think that this measure is good news. As we proceed to deliberate the features of this measure, we will find out that the provisions therein are either “possibly acceptable” to all the members of this august body, or are “possibly subject of intellectual exchanges of views or opinions.”
Let me start with the latter, Mr. President. I think it is a must that our law enforcement agencies and the military are able to prevent and detect crimes by being able to intercept communications, conversations, discussions, data, information, messages in whatever form, kind or nature, spoken or written words through the use of electronic, mechanical or other equipment or device or technology now known or may hereafter be known to science.
Sa panahon ngayon, ang mga kidnappers ay hindi na po gumagamit ng landline para makipag-negotiate ng ransom sa kaanak ng kanilang mga biktima o sa pakikipag-usap sa isa’t isa. Kung hindi man cellular phone ang gamit pag nag-uusap, ay dinadaan na nila sa text messaging. They use cellphones not only because that is our technology today, but they are probably aware that their communication is not likely to be intercepted by law enforcement agents. Landlines, Mr. President, are already a thing of the past.
Whereas, under the 51-year-old law, only 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, violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security are covered, we are proposing in our amendment of Section 3 of RA 4200 to also permit the performance of otherwise declared unlawful acts in cases involving:
1. Coup d’état, Conspiracy and Proposal to commit Coup d’état;
2. Robbery in band as defined and penalized by Articles 294, 295, 296, 299 and 302 of the Revised Penal Code;
3. Brigandage/Highway Robbery;
4. Violations of the Comprehensive Dangerous Drugs Act of 2002;
5. Violations of the Anti-Money Laundering Act of 2001.
Though inclusion of additional crimes may appear to open wider gates towards the curtailment of the right to privacy, I encourage our distinguished colleagues to view the said amendment rather as a vital tool in enhancing crime prevention and suppression. Further, the proceeds of judicial wiretapping will definitely strengthen the evidence against apprehended criminals when they are brought before the bar of justice.
U.S. Supreme Court Justice Louis Brandeis said, “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” True. That is why we also include by way of amendment a significant increase in penalties to ensure accountability for covert surveillance practices and abuses by law enforcement or military officers, authorized or not, and even by private individuals.
Our amendments, Mr. President, would show that we intend to provide stricter and more detailed provisions with respect to the application and grant of authority to ensure that rights can only be interfered if directed towards a legitimate claim in the interest of public safety and security.
In order to be allowed to wiretap, intercept, surveil or record communications, prior authorization from the Regional Trial Court is required and shall be granted only upon proof:
(1) That there are reasonable grounds to believe that any of the crimes enumerated in Sec. 3 has been committed or is being committed or is about to be committed;
(2) That there are reasonable grounds to believe that the 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 of such crimes; and
(3) That there are no other effective means readily available for obtaining such evidence.
To ensure a system of checks and balances, the role of our courts shall not be limited to the issuance of authority, but shall extend even after the implementation of its order by being the depository of whatever it is to be obtained by virtue of said authorization and also by requiring another order for the opening and use of the materials deposited therein, with notice and opportunity to be heard to the individual/s subject of the court authorization.
Allow me to emphasize that all persons whose communications were wiretapped, intercepted, surveilled or recorded shall not be left in the dark as they are mandated to be notified of such fact within 90 days from the expiration of the court order.
With our intention to include effective mechanisms for protection against indiscriminate use of wiretapping or any other means permissible by law, I am hoping that there is no need to launch a battle between efficiency of law enforcement and the right to privacy.
Mr. President, distinguished colleagues, I am hoping that this measure will merit your full support in order for us to be responsive to the plight of law enforcement agencies to have more efficient and effective investigative tools in the interest of public safety and security.
Allow me to repeat myself – the respect for private life of individuals still remains as the overall context in amending the antiquated, technologically unresponsive Anti-Wiretapping Act. This measure is no more than a mere balancing of interest in the digital age.
Thank you very much.