San Beda Lawyer Asks "Wiretapping is Crime But What About Wireless Tapping?"

Veteran San Beda lawyer and prominent social media personality, Atty. Bruce Rivera asked a very interesting question on his wall regarding the controversial and alleged audio recording between Nicko Falcis and Kris Aquino.


Atty. Bruce Rivera explained the provisions written in the 1965 Anti-Wiretapping Law (RA 4200) and asked the difference between wiretapping as a crime and wireless tapping as a subject of discussion.



According to Anti-Wiretapping Law, Section 1, "It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to top 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 dictograph or detectaphone or walkie-talkie or tape recorder, or however otherwise described:"

Atty. Rivera noted that the Anti-Wiretapping Law will be pertinent in light of a recorded conversation purporting to be that of Kris Aquino and Nicko Falcis which suddenly appeared on YouTube and was shared by many netizens.

The veteran lawyer reiterated his concern by saying that "there is no quarrel that when you tap on a landline, that is clearly a violation of RA 4200 if both parties did not give consent to it. However, what if the recorded conversation is done through wireless means like mobile phones, etc. It is difficult to assume it is included in the law because, in 1965, mobile phones were unheard of nor a future of wireless communication. Hence, how can there be wiretapping if there is no wire to even tap?"

As a lawyer, Atty. Rivera explained "Actus non facit reum, nisi mens sit rea (There is no crime if there is no low punishing it).



Here's the Complete Explanation of Atty. Bruce Rivera:

WIRETAPPING IS A CRIME BUT WHAT ABOUT WIRELESS TAPPING?

In 1965, the Anti-Wiretapping Law took effect (RA 4200) with the following provisions:

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 also 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 Sec. 3 hereof, shall not be covered by this prohibition.



Sec. 2. 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 in the preceding Sec. or who violates the provisions of the following Sec. or of any order issued thereunder, 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.

This law will be pertinent in light of a recorded conversation purporting to be that of Kris Aquino and Nicko Falcis which suddenly appeared on YouTube and was shared by many netizens.

Taking into account the wording of the law, does it apply to situations when the communication is in the clouds or wireless?

There is no quarrel that when you tap on a landline, that is clearly a violation of RA 4200 if both parties did not give consent to it. However, what if the recorded conversation is done through wireless means like mobile phones, etc. It is difficult to assume it is included in the law because in 1965, mobiles phones were unheard of nor a future of wireless communication. Hence, how can there be wiretapping if there is no wire to even tap?

Actus non facit reum, nisi mens sit rea (There is no crime if there is no law punishing it). If you read the provisions of RA 4200, what is considered a crime does not necessarily include mobile phones because it cannot be necessarily included because at that time, the authors have never contemplated a mobile phone because such technology never existed when they drafted the law.



Assuming arguendo that one can argue mobile phone is also a phone in its general sense, it creates a vagueness that should merit it being voided. (Void for Vagueness Rule requires that in penal laws, any ambiguity as to the application of penal laws will make it void).

Some say that the sharing of the recorded conversation is also punishable. I beg to disagree. The law only makes the possession of wiretapped materials knowing them to be wiretapped is punishable. And it should be in a recording vessel or apparatus. So if the shared medium is in the public domain, there is no crime. Further, no one will ever have knowledge that it is wiretapped because we cannot assume that hence good faith is a defense.

And the law also makes communicating the contents punishable. However, one has to communicate the contents verbally or in writing. Sharing the link is not included.

I honestly think RA 4200 is an archaic law and our legislators should amend it to be responsive to the evil it seeks to prevent. In an era where it is acceptable to share screenshots of private conversations and sharing a video of a minor bullying another minor is considered necessary by some people, our right to privacy must be protected by laws that actually work.

Until such time we have such laws in place, everything can be shared and what is shared out in the open becomes a public conversation, whether we like it or not.

Bruce Villafuerte Rivera

Source: Atty. Bruce Rivera FB Page

San Beda Lawyer Asks "Wiretapping is Crime But What About Wireless Tapping?" San Beda Lawyer Asks "Wiretapping is Crime But What About Wireless Tapping?" Reviewed by Phil Newsome on January 15, 2019 Rating: 5
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