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San Juan Gossip Mills Outlet

A veritable fanatic of the Internet. His avocation is teaching while his main vocation is practicing the much maligned law profession. Currently teaching Constitutional Law at the FEU Institute of Law and a guest lecturer at the De La Salle University teaching "Freedom and Regulation in Cyberspace" in the Graduate Program of the Department of Communication. He is married to his beautiful Ateneo law school classmate and is blessed with a daughter and a son.

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Location: San Juan, Metro Manila, Philippines

Tuesday, December 13, 2005

Garci Tapes - In Aid Of Legislation

Are They Covered By R. A. No. 4200?

(This extended research was submitted to my Palace friends and the Opposition prior to the Remulla hearings of the Garci tapes)

INTRODUCTION

From the moment intercepted and recorded cellular phone conversations between Commissioner Garcillano and other political personalities were publicly aired over TV and radio, most everybody concluded that the Garci Tapes (for brevity) were in violation of Republic Act No. 4200, otherwise known as the Anti-Wiretapping Act which was passed on 19 June 1965. But are they really in violation?

The conclusion reached herein is that the Garci tapes which contained recorded cellular phone conversations between Commissioner Garcillano and other personalities are not covered by Section 1 of R. A. No. 4200. The conclusion finds legal bases under Philippine jurisprudence as well as American laws and decisions of the Supreme Court of the United States.

This study is in aid of legislation and hopes to enrich the discussion on Republic Act No. 4200 in order to keep it abreast of technological developments and for that reason, to amend the law as may be necessary to cope with advances of modern telecommunications and to put necessary constitutional safeguards.

R. A. No. 4200

Under R. A. No. 4200, Section 1 provides the punishable offenses, to wit:

"Section 1. It shall be 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;

It shall be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, that the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in Section 3 hereof, shall not be covered by this prohibition."

In Section 1, the following are the instances where the crime of wiretapping is committed:


a. A person, not authorized by the parties, taps, by wire or cable their private communication or spoken word;

b. A person, not authorized by the parties, uses any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word;

c. A person, whether a party to the private communication or spoken word or not, who:

c.1 knowingly possesses any tape record, wire record, disc record, or any other such record, or copies thereof;

c.2 Replays the same for any other person or persons;

c.3 Communicates the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person;

ISSUE

Whether or not the Garci tapes constitute a violation of Republic Act No. 4200?


CONCLUSION

It is submitted that the Garci tapes which are a recording of cellular phone conversations of Commissioner Garcillano with other personalities are not in violation of Republic Act No. 4200.

RATIO

As provided in Sec. 1 of R. A. No. 4200, the first instance of the crime of wiretapping is committed when a person illegally taps a wire or cable. In other words, one who illegally taps a telephone line is guilty of the crime.

But conventional wisdom overlooks the fact that cellular phones are neither wire nor cable-based. Cellular phones do not operate by wires or cables. Moreover, Republic Act No. 4200 was passed on 19 June 1965 or long before the invention of cellular phones. Even the Senate Congressional Records of the debates where the late great Senator Lorenzo Tañada defending the proposed bill and jousting with fellow learned solons Senators Jose Diokno and Ambrosio Padilla showed no allusion to cellular phones since they were obviously not in existence at the time. Since cellular phones are wireless or cable-less, they do not fall under the first instance. Therefore, a person who "taps" a cellular phone conversation is not guilty of the first instance.

However, some may say that recorded cellular phone conversations are still covered by the second instance since a "device or arrangement" was employed to secretly overhear and record private communications. Our Supreme Court does not agree and in fact, spelled out the meaning of "device or arrangement".

In the case of Edgardo Gaanan v. Intermediate Appellate Court, et al. (G. R. No. L-69809, 16 October 1986), the Supreme Court, when deciding whether a telephone extension is a device covered by R. A. No. 4200, had occasion to define "device or arrangement" in this manner:

An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices enumerated in Section 1 of RA No. 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. It just happened to be there for ordinary office use. It is a rule in statutory construction that in order to determine the true intent of the legislature, the particular clauses and phrases of the statute should not be taken as detached and isolated expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts. (see Commissioner of Customs v. Esso Estandard Eastern, Inc., 66 SCRA 113, 120).

In the case of Empire Insurance Company v. Rufino (90 SCRA 437, 443-444), we ruled:

"Likewise, Article 1372 of the Civil Code stipulates that `however general the terms of a contract may be, they shall not be understood to comprehend things that are distinct and cases that are different from those upon which the parties intended to agree.' Similarly, Article 1374 of the same Code provides that 'the various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly.'
xxx xxx xxx

"Consequently, the phrase `all liabilities or obligations of the decedent' used in paragraph 5(c) and 7(d) should be then restricted only to those listed in the Inventory and should not be construed as to comprehend all other obligations of the decedent. The rule that `particularization followed by a general expression will ordinarily be restricted to the former' is based on the fact in human experience that usually the minds of parties are addressed specially to the particularization, and that the generalities, though broad enough to comprehend other fields if they stood alone, are used in contemplation of that upon which the minds of the parties are centered. (Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis. 603, 607; 115 NW 383, cited in Francisco, Revised Rules of Court (Evidence), 1973 ed., pp. 180-181."

Hence, the phrase "device or arrangement" in Section 1 of RA No. 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." (emphasis supplied)
Applying the principle of ejusdem generis which provides that "where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same kind or class as those specifically mentioned" (RP v. Migriño, G. R. No. 89483, 30 August 1990), the Supreme Court narrowed the definition of "device or arrangement" to instruments which could tap a telephone line. Therefore, conversely under the Gaanan definition, a device or arrangement which seeks to overhear cellular phone (which are neither wire nor cable-based) conversations are clearly not covered by R. A. No. 4200.

The Gaanan decision is the logical consequence of zeitgeist. It must be noted the Supreme Court took judicial notice that when Senate Bill No. 9, which later became R. A. No. 4200, was being debated in 1964, telephone extensions were already in wide use. In fact, debates on the floor ensued on whether overhearing through a telephone party line was punishable. And yet, the final bill did not include telephone party lines. If a telephone party line which was already in vogue was excluded from the enumeration of "device or arrangement", how can we justify the inclusion of cellular phones as covered by the law when they were not even invented in the first place? And how can we justify the inclusion of any device to record or overhear cellular phones when the great senators of our Republic never even dreamt of telecommunications equipment which will not require the appendage of wire or cable?

R. A. No. 4200 did not and could not have anticipated the rise of cellular phones. To be quite technical, wire-tapping a cellular phone is an oxymoron because at the risk of being redundant, there is no wire or cable to tap on a cellular phone. The proper term applicable to “tapping” cellular phone conversations is intercepts.

It is axiomatic in substantive criminal law that penal statutes must be construed strictly in favor of the accused. Thus, if any doubt exists as to the applicability of R. A No. 4200 on cellular phone recording as a forbidden act, the doubt must be resolved in favor of the accused.

We can further appreciate the non-applicability of R. A. No. 4200 in the light of American experience on wire-tapping.

Brief U.S. History on Wiretapping

The first case of wiretapping in the United States was the celebrated case of United States v. Olmstead (277 U.S. 438 [1928])) where Federal prohibition agents wiretap a telephone conversation between Olmstead and his lawyer. The Supreme Court ruled that the evidence obtained through wiretap was admissible because there was no physical intrusion into either the home or office of the defendant but however suggested that Congress can protect the protect the secrecy of the telephone conversations by making them inadmissible under certain circumstances.

As a result, the US Congress passed the Communications Act of 1934 and in one of its sections, prohibited the intercept of communications and disclosing the communication unless authorized by the sender.

In 1968, responding to several Federal Supreme Court decisions on the admissibility of evidence of wiretapped communications, the US Congress passed the Federal Wiretap Act that prohibited the willful intercept of wire (primarily telephone) or oral communications. However, with new technology, the definition of oral or wire communication under the Federal Wiretap Act led the courts to struggle whether portable telephones and mobile telephones (cellular phone predecessor) were covered under the Federal Wiretap Act. To solve the seeming vacuum, Congress passed the Electronic Communication Privacy Act of 1986 which amended the Federal Wiretap Act and specifically included cellular phone conversations within the prohibition. And in 1994, the Communications Assistance for Law Enforcement Act further amended the Federal Wiretap Act and prohibited the unauthorized intercept of the broadcast portion of portable or cordless telephone conversations.

As a result of these amendments, the US Supreme Court, in the case of Bartnicki v. Vopper (532 U. S. 514 [2001]), ruled that respondents were guilty of disclosing the unauthorized intercepts of cellular phone conversations although the Court ruled that the statutes violated the First Amendment clause or the “free speech” clause of the US Constitution because the matters discussed in the cellular phone conversations were matters of public interest.

Presently, the US Congress has tried to keep abreast with developments in modern communications such electronic email, voice mail etc. More so with a post 9/11 atmosphere and the passing of the US Patriot Act, wiretapping and surveillance have become necessary tools in the fight against crime and terrorism.

Our Experience

Contrasted with the U.S. evolution of wiretapping laws as well as the expansion of subjects that were covered by subsequent amendments, the Philippines has largely left R. A. No. 4200 untouched. And if one considers the dilemma of US Congress over the definition of wire or oral communication and the subsequent inclusion of cellular phones as a prohibited medium in 1986, one can leave with a conclusion that cellular phones and intercepts of their conversations were clearly not covered or anticipated by R. A. No. 4200.

As a necessary consequence thereof, one may be argue that since the intercepts of cellular phone conversations are not covered by the prohibition in the law, the tapes may be received in evidence subject to the procedural rules on admissibility of evidence.

This study is merely limited to the applicability of R. A. No. 4200 to cellular phone conversations. In the light of wireless technology and advances in telecommunications, the law, as presently worded, is woefully outmoded and is in dire need of revision. Otherwise, we will be in the same situation a few years back when the NBI could not prosecute the creator of the Love Bug virus that wreak havoc all over the Internet because there was no law covering property destruction on the Internet.

Proposed Legislative Measures

It is recommended that in the light of rapid advances in wireless technology, telecommunications equipment and the like, R. A. No. 4200 must be revisited and re-examined to update itself with present technology, their definitions, and the scope of the law’s prohibited coverage. Moreover, it is further recommended that taking into consideration the American experience and a wealth of jurisprudence on wiretapping and surveillance, safeguards be put in place to prevent any abridgment of any constitutional rights of the persons sought to be investigated. In that way, we can ensure that wiretapping and electronic surveillance will not be abused and that acts that ought to be covered by the law can be proscribed without fear or doubt by enforcement officials or by the courts of law.

2 Comments:

Anonymous Anonymous said...

Your opinion on the wire tapping scandal is well researched as shown by the numerous jurisprudence both local and int'l you have cited. The various principles in statutory construction you mentioned may indeed support your analysis on the law and its application on the Garci scandal. I have to say though that I am not convinced by your arguments. Your main point is that, The Law fails to cover the use of Cellular phones thereby making the present controversy beyond its reach. While the rules on statcon you mentioned are useful, you seem not to have considered the mOst basic one that is "CONFINE NOT TO THE WORDS THAT KILLETH BUT TO THE SPIRIT THAT GIVETH LIFE". Indeed nowhere in the law mentions the gadget cellular phone, but it is not the device use that makes the act punishable, but the act itself of eavesdropping which the law prohibits. So regardless of what device was used as long as one pricks into the privacy of communication, that is enough to make the act in violation of law. Our constitution guarantees the IVIOLABILITY OF COMMUNICATIONS, it would be absurd to think that we may violate this fundamental law provision simply because the enacted law is wanting in words which will fully safeguard the privacy of communications. If we go with your argument, it is therefore perfectly legal to wiretapp all cellular phone subscribers because there is no law prohibiting such. Eavesdropping is prohibited because of public policy and the act is inherently criminal, it is not prohibited by reason of law. I believe that the intention of the law is to punish eavesdropping for this violates one's privacy and it is not the use of devices in eavesdropping that is punishable. To construe the law in the way you proposed it results to absurdity as it may happen that some forms of eavesdropping are prohibited while others may not be but the sad fact is it is both eavesdropping.
I hope you consider my points and explain on your answer why I should abandon my stand and find your arguments with basis in law and jurisprudence

---ditto andolini--
out of school youth

5:28 PM  
Anonymous dawin said...

DA,

RA 4200 is a criminal statute composed of two parts, technology and the act violated.

If you disregard technology and just say all eavesdropping is illegal because it is just illegal, then you are missing out on several points.

One, if technology is not important, why did the solons come up with a law to punish wiretapping. If you remember the love virus, it caused so much havoc in the internet and would be tantamount to destruction of property, yet, if destruction of property is obviously wrong, why then was the fellow not punished at all? Isn't it a fact that subsequent to the love virus, the legislators came up with a law against hacking and spreading of virus which would have caused destruction to property? Thus, it is not correct to say that technology is not important.

Second, if technology is not important and eavesdropping is constitutionally impermissible, why then did the solons not just come out with a generic law punishing all forms of eavesdropping and not focus on wiretapping?

Third, one of the reasons, among others, why we make laws is to plug loopholes in existing laws. Clearly, the technology aspect of RA 4200 is antiquated and has to be updated. Cellphones were not within the purview of the law. And like it or not, being a criminal statute, the acts and means used must be specifically stated. Otherwise, sadly there is no crime.

Our criminal statutes are not living breathing organism that can expand or contract depending on the exigencies of the time. Rather, our laws, especially technology based laws like RA 4200, are fixed at a certain period of time taking into account existing technological capabilities. We cannot use RA 4200 to punish wiretapping because however bedevelling and absurd it may seem to many including you, technology then never anticipated the existence of cellphones.

That is the unfortunate state of RA 4200 and we need to urgently amend that law. Otherwise, we would be in a situation where RA 4200 is the only law that will not require amendment notwithstanding the fact that its provisions and technology are so woefully outdated.

11:13 PM  

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