Monday, July 16, 2007

Wiretapping & Surveillance Forbidden On Doctors & Patients, Lawyers & Clients, Journalists & Sources, All Business Correspondence!

The Human Security Act of 2007 has been in effect for less than 24 hours and already it is having the predicted effect of driving some people into frenzies of frantic alarm, (not to say widespread and extraordinary fear and panic). All kinds of false claims and scary fairy tales against the new Anti-Terrorism law is being spread throughout Media, Academe and Civil Society.

"The sky is falling! The sky is falling!" every self-appointed Human Rights Activist seems to be crying, with a dumbfounded Media holding the mike and wondering out loud what it all means.

For example, I just saw my old friend Prof. Harry Roque, Director of the University of the Philippines Law Center's Institute for International Legal Studies on TV talking to Linda Andanar Yu (ABSCBN) who was wondering out loud about the terrorist implications of text messages that tend to sow widespread fear and panic...(hmmm, like, maybe the one I got that said I better send the sender ten thousand bucks or else my cell phone would blow up?).

Unfortunately, I think we are in for a long season of such Scary Fairy Tales for Teenagers and Adults based on all kinds of conflicting claims, interpretations, analysis and commentary on the Human Security Act and its many controversial and admittedly beguiling and mystifying provisions.

But I was surprised to hear Professor Roque make two false claims or wrong interpretations (misreading? nonreading?) of the Human Security Act with regard to the standard to be applied by the Special Division of the Court of Appeals in considering requests to authorize wiretapping and the opening of financial records of accused or suspected terrorists. In both cases, he mistakenly claims that the law has adopted a standard of "mere suspicion" for granting these special authorizations.

...Harry Roque on wiretapping...

...Harry Roque on opening of bank records...

He is contradicted by the two pertinent sections of the HSA:

SEC. 8. Formal Application for Judicial Authorization. – The written order of the authorizing division of the Court of Appeals to track down, tap, listen to, intercept, and record communications, messages, conversations, discussions, or spoken or written words of any person suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall only be granted by the authorizing division of the Court of Appeals upon an ex parte written application of a police or of a law enforcement official who has been duly authorized in writing by the Anti-Terrorism Council created in Section 53 of this Act to file such ex parte application, and upon examination under oath or affirmation of the applicant and the witnesses he may produce to establish: (a) that there is probable cause to believe based on personal knowledge of facts or circumstances that the said crime of terrorism or conspiracy to commit terrorism has been committed, or is being committed, or is about to be committed; (b) that there is probable cause to believe based on personal knowledge of facts or circumstances that evidence, which is essential to the conviction of any charged or suspected person for, or to the solution or prevention of, any such crimes, will be obtained; and, (c) that there is no other effective means readily available for acquiring such evidence.
SEC. 27. Judicial Authorization Required to Examine Bank Deposits, Accounts, and Records. – The provisions of Republic Act No. 1405 as amended, to the contrary notwithstanding, the justices of the Court of Appeals designated as a special court to handle anti-terrorism cases after satisfying themselves of the existence of probable cause in a hearing called for that purpose that (1) a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) of a judicially declared and outlawed terrorist organization, association, or group of persons, and (3) of a member of such judicially declared and outlawed organization, association, or group of persons, may authorize in writing any police or law enforcement officer and the members of his/her team duly authorized in writing by the anti-terrorism council to: (a) examine, or cause the examination of, the deposits, placements, trust accounts, assets and records in a bank or financial institution; and (b) gather or cause the gathering of any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or financial institution. the bank or financial institution concerned shall not refuse to allow such examination or to provide the desired information, when so ordered by and served with the written order of the Court of Appeals.

Professor Roque is just plain wrong about the law. PROBABLE CAUSE is still the standard for authorizing wiretapping or opening of financial records. But then again, the tv audience that was listening to him tonight doesn't know that, unless they've read the law themselves.

But here is a kick in the head: WIRETAPPING IS, FOR ALL INTENTS AND PURPOSES NOW LARGELY FORBIDDEN under this new law, not vastly and menacingly expanded as some people would have us believe!
SEC. 7. Surveillance of Suspects and Interception and Recording of Communications. – The provisions of Republic Act No. 4200 (Anti-wire Tapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways and means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized.
Law enforcers were really far better off without this new law, which restricts the targets of surveillance and intelligence gathering operations to the cats and dogs outside the terrorist safe houses, and only if they are not veterinary patients of Dr. Death-By-Beheading. The Anti-Wiretapping Law (RA4200) by contrast allows surveillance and wiretapping for national security purposes and to pursue kidnappers. Under that law, such authorization could be acquired by any peace officer from just a Regional Trial Court. Now it must be granted by a Special Division of the Court of Appeals and approved by the Anti-Terrorism Council.


Manila Bay Watch said...

Is that so? Useless law?

I toldya, it's the backbone that's needed to crack the MILF wide open and to eliminate it and all the other parallel armies existing in this land, not another law.

DJB Rizalist said...

I think the main point is that the alarmists have not read the law.

lone baguio guy said...

i think the law is given too much of a beating... let us give the law a chance to prove itself.
i know that we have not that much trust on the government, but if a terrorist does his or her job, shall we blame the government for not doing its job? it proposed a law in order to prevent these things (i hope so).
however, i hope the gov't does its job. if this is an image pitch for the US, it is just plain and paper.
if this is just for the deprivation of the freedom of expression and infringement of the right to privacy, it is still ink on paper with the pinch of intimidation.

we have to be vigilant but still be acceptable to the things that in the long run may help us. if it gets out of hand, lets pull the leg of the authorities and be accountable in any way of abuse or wrongdoing...