Are tapped or intercepted text messages admissible in evidence?

In my last column, I wrote that text messages are admissible in evidence under the Rules on Electronic Evidence (REE).

Several software programs may now be used to intercept text messages, allowing a third person to monitor and record the messages of another person without his knowledge or consent.

A question worth discussing is whether tapped or intercepted text messages are admissible in evidence under Republic Act No. 4200, more popularly known as the Anti-Wiretapping Law, or any related law.

Anti-Wiretapping Law

The 1987 Constitution provides that the privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as provided by law.

Any evidence obtained in violation of this provision shall be inadmissible in evidence for any purpose in any proceeding (Section 3, Article III).

To protect the privacy of communication, Congress enacted the Anti-Wiretapping Law. Under this law, it is “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 walkie-talkie or tape recorder, or however otherwise described.” (Section 1).

Section 4 of the law provides that any communication or spoken word, or the existence, contents, substance, purport, effect or meaning of the same or any part thereof, or any information contained therein obtained or secured by any person in violation of the foregoing provision shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.

Invoking the case of Gaanan vs Intermediate Appellate Court (October 16, 1986), some quarters argue that tapped or intercepted text messages are not covered by the Anti-Wiretapping Law.

They point out that Ganaan suggests that there must be some physical intrusion or interruption through the installation of a physical device of a telephone line which is not applicable to electronically transmitted communications like text messages.

Verba legis

I’m not a techie and I don’t want to be embroiled in an argument whether text messages can be wiretapped from a technical standpoint. Suffice it to state that the Anti-Wiretapping Law is not limited to tapping any wire or cable.

Neither is it restricted to using dictaphone, dictagraph or walkie-talkie to secretly overhear or record private communications.

A cursory examination of the law will readily indicate that its terms prohibit the use of any “other device or arrangement” “however otherwise described” that enables a third person “to secretly overhear, intercept, or record such communication” (Section 1).

Note also that the constitutional presumption is in favor of the privacy of communications. This fundamental right is “inviolable except upon lawful order of the court, or when public safety or order requires otherwise as provided by law” (Section 3, Article III, 1987 Constitution).

In this regard, Congress provided for the limited instances where private communication can be intercepted and recorded without the consent of the parties to the communication. These are provided by the Anti-Wiretapping Law itself and quite recently by R.A. 9372, otherwise known as The Human Security Act of 2007.

The cases covered by the exception are 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.

Note also that it is not enough that the particular case is one of the cases enumerated by the Anti-Wiretapping Act and The Human Security Act of 2007 where the privacy of communication can be intruded upon.

Unlike some laws in other jurisdictions, our local laws uniformly require a court order as a condition precedent to the tapping or recording of private communications.

Criminal liability

To further stress the importance of protecting the sanctity of private communications, the Anti-Wiretapping Act provides for criminal liability for its violation.

The penalty is 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 is a public official and, if the offender is an alien, he shall be subject to deportation proceedings.

The criminal liability is imposed not only on the person who actually taps, intercepts or records the private communication or who aids, permits or causes the intrusion of such communication, but also on any person who knowingly possesses any record of the private communication or who replays, communicates the contents thereof, or furnishes transcriptions of the record, to any other person.

(The author is the co-managing partner of the Angara Abello Concepcion Regala & Cruz Law Offices and is a law professor of the Ateneo de Manila University. He may be contacted at: [email protected].)