The Senate inquiry into the series of incidents that resulted in the unfortunate death of the 44 Special Action Force (SAF) of the Philippine National Police (PNP) provides us a new lens from which we can look and analyze current protocols being practiced between and among the uniformed services of the country.
Strikingly, the past sessions of the Senate proceedings have highlighted the reliance of our security and defense operators on their cellphones in transmitting critical communication during security operations. For this column we touch on another aspect involving the matter of cellphones and communications equipment, the defense sector and the welfare of our citizens—that of wire tapping.
Our Constitution adequately provides for the protection of the privacy of communication and correspondence. This, it states, shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as provided by law. Moreover any evidence obtained in violation of this provision shall be inadmissible in evidence for any purpose in any proceeding. These constitutional provisions are reinforced through R.A. 4200 (the Anti-Wire Tapping Law) which sought to punish wiretapping and other related violations of the right to privacy of communication. Accordingly, the law similarly aims to prevent officers of the government of spying on one another which it refers to as a “most obnoxious instrument of oppression or arbitrary power.”
Similarly, however, R.A. 4200 as well as R.A. 9372 otherwise known as The Human Security Act of 2007 provides for limited instances where private communication can be intercepted and recorded by law enforcers without the consent of the parties to the communication. These exceptions include cases covered by 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, espionage and other offenses against national security, terrorism or conspiracy to commit terrorism.
This means that the law provides that police and other law enforcement agencies may wiretap private communications with the following requirements which must be strictly complied with: law enforcers must first secure a court order—and only in cases involving crimes against national security under the Revised Penal Code as mentioned above. The law further says that there must be prior proof in cases involving rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition.
What is disconcerting is that based on our national experience, it is a well accepted fact that more sinister and adventurous members of our law enforcement and security and defense sectors will not be deterred by these requirements. This grave abuse of power is very hard to determine particularly for regular folks like us without any technical knowledge or capabilities to protect ourselves from such unlawful infringements on our right to privacy. There are however, some tell tale signs that we can use as reliable basis for such intrusions. I was told by those in the know that one very strong sign that your phone is probably being tapped is if you experience receiving a call and yet it is only the sound of the echo of your voice that you hear.
Although there are instances wherein the merits of wire tapping can be argued (as those involving national security) there is the looming issue of abuse by the very people who should be protecting our basic rights. Consequently, a bigger concern here is if the TelCos are indeed complicit in this invasion of our privacy by these sinister operators.