The Right to Privacy and the Public's Right to Know

AT THE HEART of the controversy swirling around former Comelec Commissioner Virgilio Garcillano is a complex legal issue involving privacy rights. Fundamental to the case is Section 3 of the Bill of Rights of the 1987 Constitution:

Section 3. (1) 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 prescribed by law.

Also germane to the case is RA 4200, the 1960s-era Anti Wiretapping Law authored by the legendary Senator Lorenzo Tañada and described at the height of the Gloriagate crisis by the Philippine Star --

MANILA, July 18, 2005 (STAR) A law each day (KEEPS TROUBLE AWAY) By Jose C. Sison - The late Senator Lorenzo Tañada perhaps never imagined that the Anti-Wiretapping Law he authored would be the center of controversy involving the use of tape recorded conversations containing lurid details of plots and counter-plots swirling around the very occupant of the highest office in the land. In passing the law in 1965 our lawmakers clearly intended "to discourage, through punishment, persons such as government authorities or representatives of organized groups from installing devices in order to gather evidence for use in civil, criminal, administrative and or legislative hearings or investigations or to intimidate, blackmail or gain some unwarranted advantage over the telephone users" (Gaanan vs. IAC, L-69809, October 16, 1986, 145 SCRA 112).

It is remarkable that RA 4200 was promulgated in the first year of Ferdinand Marcos presidency (1965) being written with LORENZO TANADA's renowned anti-authoritarian and civil libertarian philosophy. But if its most potent application and use should occur forty years later in 2005, that would surely not cause him any unhappiness. For if the testimony of Marieta Santos in the Philippine Senate proves to be truthful (as the Senate President Frank Drilon and Defense Committee Chair Sen. Rodolfo Biazon seem to think it is) then no less than the Intelligence Services of the Armed Forces of the Philippines may have violated RA 4200.

WHAT IS SO WRONG ABOUT WIRETAPPING? Morally speaking, it is probably the same thing as EAVESDROPPING. When two other persons are talking to each other, after all, there is something socially reprehensible about a third person secretly listening in and discovering things that perhaps the other two would not want anyone else to know. PEEPING or SPYING on a person while he or she is going through their normal routine would be considered socially reprehensible behavior -- only a CREEP would do such things. Moreover, such activities -- peeping, spying, eavesdropping, and wiretapping -- are intuitively reprehensible because they are all invasions of our Right to Privacy. But what exactly is this RIGHT TO PRIVACY? Isn't it just the freedom from being snooped upon?

THE RIGHT TO PRIVACY: In the course of studying the Anti Wiretapping Law, RA 4200, I have come to discover that the "Right to Privacy" is much more than the freedom from Peeping Tom paparazzi, eavesdroppers and investigative journalists. It turns out that the Right To Privacy is actually a far grander thing than that. The Right to Privacy is in fact the foundation of most if not all of the human rights and duties that are granted to individual citizens under a Constitutional Democracy! The Right To Privacy is the Mother of all democratic rights:

THE PRIVATE SECTOR: Individuals are the most numerous members of the "Private Sector." In democratic societies, the most basic human right is to be secure in our persons, homes and possessions; This includes all the physical and mental aspects of private personhood and citizenship in the private sector. The individual citizen is also the smallest possible minority in a democratic society, the cell of the body politic as it were. As such, the individual gets an entire Article of the Constitution guaranteeing such protection -- the Bill of Rights.

FREEDOM OF SPEECH: The Right to Privacy is also the basis of Freedom of Speech and Expression, because the right to hold a a private opinion and to express it freely is a human right of every private citizen. It is like an extension of the more primitive rights to material property to include the realm of our thoughts, sensations, literary and artistic creations, and even our ordinary conversations. The quality and content of such nonmaterial properties of a private person are immaterial to the degree of protection accorded by the Constitution. They are treated by the Law as possessions in their own right -- as intellectual private property. Intellectual property doesn't have to be "intellectual" either. Freedom of speech is based on the freedom to hold private thoughts and opinions as pieces of property, the right to which we may not be deprived of. Thus COPYRIGHTS, PATENTS, and TRADEMARKS are INTELLECTUAL PROPERTY RIGHTS that are based on freedom of speech and the Right to Privacy.

FREEDOM OF PEACEFUL ASSEMBLY, in turn is based on the individual's freedom of speech, when a large number of such individual private opinions happen to coalesce into a demonstration or protest march. Or to organize a newspaper, radio station or tv. Or bloggerdom.

FREEDOM OF RELIGION: A sibling of the rights of free speech is the right to hold a private belief in GOD or to believe in no deity at all. This private right of believe-it-or-not is also the foundation of the freedom of religion, the right to worship freely as one wishes to in private or in voluntary associations called churches. Thus the Right to Privacy is also the foundation of the Principle of the Separation of Church and State, by a not so-circuitous route.

THE MOTHER OF ALL RIGHTS: Every person's Right to Privacy is thus the most precious of democratic rights. It is the Mother of all our core democratic rights. In fact, I suspect that the Right to Privacy is the right to have all those other democratic rights for which we have definite names.

LIMITATIONS ON THE RIGHT TO PRIVACY: I cannot do enough to recommend to all who are studying the moral and legal dimensions of the Garci Tape Controversy, the following 19th century essay: THE RIGHT TO PRIVACY by Samuel Warren and Louis D. Brandeis. Originally published in 4 Harvard Law Review 193 (1890). At that time, tape recorders and telephones were not yet used much outside of Menlo Park and Schenectady, much less Intramuros and Malacañan Palace and the big Garci issue of the day was whether you could publish a woman's hand drawn portrait in the newspaper without her consent. In it, the limits of the Right to Privacy are enumerated (and lucidly discussed so follow the link for that.)

First. The right to privacy does not prohibit any publication of matter which is of public or general interest.

Second. The right to privacy does not prohibit the communication of any matter, though in its nature private, when the publication is made under circumstances which would render it a privileged communication according to the law of slander and libel.

Third. The law would probably not grant any redress for the invasion of privacy by oral publication in the absence of special damage.

Fourth. The right to privacy ceases upon the publication of the facts by the individual, or with his consent.

Fifth. The truth of the matter published does not afford a defense.

Sixth. The absence of "malice" in the publisher does not afford a defense.

MY LIBERTY IS YOUR LIBERTY! These are the principles that guide the debate over whether the media and the citizenry at-large have any rights at all to "use" the Garci Tapes, to hear them, listen to them, put links on weblogs to edited copies of them, etc. I would assert that at a minimum, the Congress has the same "rights" as the citizenry at large with respect to any question of a purported invasion of the Right to Privacy. In so far as any such breach in one man, is a breach in the Liberty of all, it also must follow that if the Congress itself is ever deprived of such rights over the Garci Recordings, the public at-large will also have been so deprived, in equal if not greater measure.

THE PUBLIC'S RIGHT TO KNOW: Dong Puno had some interesting guests last Thursday night. In the discusion on the "public's right to know," House Minority Leader CHIZ ESCUDERO brought up the United States case of BARTNICKI v. VOPPER [532 U.S.(2001) Docket No. 99-1687] whose Abstract is as follows --

FACTS OF THE CASE: An unidentified person intercepted and recorded a phone call between the chief union negotiator and the union president (the petitioners) during collective-bargaining negotiations involving a teachers' union and the local school board. After a teacher-favorable proposal was accepted, a radio commentator played a tape of the intercepted conversation. Petitioners filed suit under both federal and state wiretapping laws, alleging that an unknown person using an electronic device had surreptitiously intercepted their telephone conversation. Rejecting a First Amendment protection defense, the District Court concluded, in part, that the statutes were content-neutral laws of general applicability containing "no indicia of prior restraint or the chilling of free speech." Ultimately, the Court of Appeals found the statutes invalid because they deterred significantly more speech than necessary to protect the private interests at stake.

QUESTION PRESENTED TO US SUPREME COURT: Does the First Amendment provide protection to speech that discloses the contents of an illegally intercepted communication?

CONCLUSION: Yes. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the First Amendment protects the disclosure of illegally intercepted communications by parties who did not participate in the illegal interception. "In this case, privacy concerns give way when balanced against the interest in publishing matters of public importance," wrote Justice Stevens. "[A] stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern." Noting that the negotiations were a matter of public interest, Justice Stevens wrote that the "debate may be more mundane than the Communist rhetoric that inspired Justice Brandeis' classic opinion in Whitney v. California, but it is no less worthy of constitutional protection."

PARALLELS Why is Bartnicki v. Vopper important to Gloriagate and the Garci Tapes? It is important because like the Barnicki case, the press and the public had nothing to do with the release of the Garci recordings into the public domain. In fact most of them got their first copy of the Garci Tapes from none other than Press Secretary Ignacio Bunye when he revealed the existence of two CDROMs in his possession -- one containing what he claimed were genuine conversations between President Gloria Macapagal Arroyo and a certain Mr. Bong Ruado (a local political leader and supporter); and a second CDROM containing what Sec. Bunye claimed were faked or spliced conversations between the President and Comelec Commissioner Virgilio Garcillano. Right after this stunning announcement to the Malacanang Press Corps, Sec. Bunye in retrospect made a big blunder -- he allowed the Palace Media reporters to listen to and even make digital copies of the two CDROMs. The two sets of Bunye's audio recordings are still available online at the blog of the Philippine Center for Investigative Journalism (PCIJ). Just an hour before Sec. Bunye held his Press Conference and released the Bunye Version of the Garci Recordings into the Public Domain, a radio station, DZBB played another version of the Garci Recordings, that of lawyer Alan Paguia, which broadcast, in retrospect once more, was the reason for Sec. Bunye's maladroit antidote to the release into the Public Domain of the Paguia Version of the Garci Tapes. When it rains, it pours, because then Senator Panfilo Lacson also released the Lacson Version of the Garci Recordings into the Public Domain, even mass producing copies and distributing them through his Be Not Afraid Movement. Likewise the PCIJ had posted MP3s of all these versions, which are still available online. From there, dozens of versions proliferated as mass organizations packaged and sold their own versions of the Garci recordings, spicing them up with the most hilarious Ring Tones and spoof music featuring choice snatches of the Garci Recordings, like, "Hello Garci! Yes Ma'm" and "Yung dagdag, Yung dagdag". Within I would say a week of the original releases into the Public Domain, the atmosphere was saturated with excerpted sounds from the Garci Recordings. Everyone was talking about the awful picture that those conversations were painting about the President and Virgilio Garcillano. The scandalous nature of the developments seems to have goaded the government into foolish action. For example, there was a clumsy attempt to use the National Telecommuncations Commission (NTC) to pressure newspapers, televsion and particularly AM radio stations from continuing to air the scandalizing conversations. This move utterly backfired as it was equivalent to throwing fuel onto a fire. That really drove the Garci Recordings to the top of the charts and beyond as ringtones and CAR HORNS imitating the President's voice and Garci's made their hilarious appearance. The rising crescendo of ridicule and public obloquy alarmed the Palace because it seemed there would surely be a People Power event as indeed demonstrations and rallies denouncing the President were increasing in frequency and attendance. The Palace justified this action using the argument that because these various versions of the Garci Recordings, these "Garci tapes" were illegally acquired they were subject to the sanctions of the Anti Wire Tapping Law and ought not to be aired and reproduced by the Media and private citizens. Now if you read again the Conclusion of Bartnicki v. Vopper, you will see why the Palace would've been struck down by the US Supreme Court in the hypothetical situation that the Garci Tape case were to be submitted to that august body. By the way, the parallels between the Garci Case and the US case are striking -- the wiretapped conversations in the latter were between a Gloria Bartnicki and an Anthony Kane (as noted by Chiz Escudero during Dong Puno's show.)

BUNYE'S VIOLATION OF RA 4200: If not for the above insights of Bartnicki on the limits of privacy rights relative to freedom of the press, one would think everyone who had mere possession of a copy of the Garci tapes would be violating Section (2) of RA 4200 --

SECTION 2. Any person who wilfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding section or who violates the provisions of the following section 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 proceeding

If one believes Bartnicki is applicable, then "First Amendment rights" -- freedom of speech and the press -- would shield the press and bloggers from any violation of Sec. 2. But even if one does not believe Bartnicki to be applicable, one is still faced by one of Gloriagate's enduring absurdities -- Secretary Bunye was one of the first, if not the first to violate Section 2 when he allowed Malacanang Media to make copies of his fake and original CDROM-based Garci-Ruado conversations.

JUSTICE'S TIGHTROPE ACT: I have not actually read anywhere that the Right to Privacy in a Constitutional Democracy is checked or balanced by a countervailing public Right to Know, because I haven't found yet an essay as lucid as the one cited above that discusses the Public Right to Know in contravalence with the Right to Privacy. But it seems to me it is a nice principle, like Isaac Newton's Third Law: For every action, there is a reaction.

But notice that the RIGHTS OF PRIVACY are INDIVIDUAL RIGHTS, while the PUBLIC'S RIGHT TO KNOW seems more to be a "RIGHT OF EVERYONE" . This suggests to me that the CONGRESS of the PHILIPPINES should be the true party in interest, on behalf of "everyone" in any case that might require the adjudication of a question pitting the Rights of Privacy against the Public's Right to Know. As Rep. Gullas memorably said, (though Teddy Boy Locsin's quotation of him became more memorable): The line between privacy rights and the public's right to know is the line drawn against self-incrimination."

That is Justice's Tightrope Act, but I think someone already revealed the secret of how to successfully negotiate it. I think, a great and learned man, SENATOR LORENZO TANADA, once wrote a law so finely balanced between the two great realms of the Public and the Private sectors, that one is immediately convinced: Justice will be done if only we would follow the Letter and Spirit of this Law -- Republic Act 4200 The Anti-Wiretapping Law.

[THERE WILL BE UPDATES HERE!]

(0830) I BELIEVE NARCISO ABAYA: Broadsheet Malaya carries this story today --

SENATE President Franklin Drilon yesterday said Gen. (ret.) Narciso Abaya was "bypassed" when conversations between President Arroyo and former elections commissioner Virgilio Garcillano were allegedly wiretapped by the Intelligence Services of the AFP (Isafp). Abaya was AFP chief when the conversations, which took place during the election period last year, were recorded supposedly by Isafp’s Military Intelligence Group 21. Abaya retired October last year. Drilon said he talked with Abaya Sunday. "He told me that he did not know anything about this wiretapping while he was chief of staff. Therefore, it would appear that this wiretapping was done without the knowledge of the chief of staff, the highest official of the Armed Forces of the Philippines," Drilon said. "Sabi niya, ‘Hindi ko ito alam, sir,’" Drilon said quoting Abaya.

I've always been a great admirer of General Narciso Abaya, the former Chief of Staff of the Armed Forces of the Philippines. He is a graduate of the Philippine Military Academy (Baguio) and the United States Military Academy (West Point), becoming only the second West Point graduate to become AFP COS, the first being Fidel V. Ramos. Gen. Abaya holds a Master of Science degree in Civil Engineering from Lehigh University in Bethlehem, Pennsylvania, and reportedly topped the 1974 Civil Engineering Board exams. The one and only time I ever met him personally, I looked him in the eye and brazenly asked him if he would ever do what General Angelo Reyes did on 19 January 2001. He looked right back at me and simply said, noting perhaps that I had the tape recorder turned off, "Dean, I'm a Constitutional soldier." Saludo, mon general! I hope he helps in the inexorable march of the People's Right to Know! (I've no doubt he will. He is a Soldier, first and foremost.)

(0930) IS PARIS BREAKING OUT IN AUSTRALIA? Following up on recent Sydney Beach riots, The Belmont Club opines, "I think Oz is the middle of the biggest political crisis of the decade. This is going to polarize the population, not fatally, but as never before." Read it all and check out what a blogospheric Comment Thread looks like. Related Post here at Philippine Commentary: Paris As A Memetic Outbreak.

(1210)TAG TEAM WRESTLING THE PUSILLANIMOUS HOUSE: I guess they deserve the drubbing they are getting. But this morning was a gruesome picture in the House. It's pretty clear this will all be settled in the Supreme Court -- with the Five House Committees' Report being used to wipe up Garcillano's Judas Goat hoofprints. It really doesn't look that good right now at the Lower House. I just don't understand why they don't file their OWN suit in the Supreme Court charging ISAFP and persons unknown for violation of RA4200 Sections (1) and (2) to MAKE THE TAPES admissible as evidence. Heck even the Bloggers understand this! Garci is getting ready to tag his partner, the Supreme Court to finish off the Opposition, which is in moral and logical disarray. The Senate too may already have lost its way...

(1230) SINGAPORE SHOULD WORRY: One of the things that tiny but powerful SINGAPORE boasts off, with some justification is their excellent anti-terrorism program. On many websites, testimonials are given to the high degree of security alertness, especially at their borders, that the Singporeans have been able to accomplish. But perhaps Singapore Secret Service should pay some attention to the hearings going on in the Lower House of the Republic of the Philippines. Details are emerging tending to show that it someone named VIRGILIO O. GARCILLANO entered and left their country, according to their own records, but either he was the person by that name but PRETENDED to be part of a Subic-based flight crew, OR someone using that name transited Singapore but wasn't him. Either way, that could've easily been Dulmatin! Come to think of it, all the countries the Fugitive from Justice Garci may or may not have been too while running from the Congress: Brazil, Argentina, England, etc. It's only the Filipinos that are being made a mockery of by him.

(1500) BLOGGING THE EAST ASIA SUMMIT: Pajamas Media has a nice round up of blogospheric opinion and analysis of the on-going East Asia Summit. Bloggers from the region present varying perspective on this all important development. Check out FittayMooN in Kuala Lumpur. imagining a borderless Southeast Asia with the Editor in chief of the Jakarta Post. Philippine Commentary has two posts on recently this broad and still evolving topic: China's New East Asia Co-Prosperity Sphere and Russia, China Big in ASEAN. Where's America?

(2015) THE RULE OF LAW -- PAJAMAS BECOME YOUI think whatever they had in mind when they organized PJ is beginning to show in this BLOGJAM on the Rule of Law in the 21st Century involving some of the Aristocracy of Bloggerdom who address an initial question posed about democracy -- is it necessary for spreading prosperity and how should it be accomplished? The participants --

Jim Bennett, Albion's Seedlings
Glenn Reynolds, Instapundit
Kenneth Anderson, Law of War & Just War Theory Blog
Omar, Iraq the Model
David Corn, the Nation

Read it all at PJ but the money quote is from Jim Bennett of Albion's Seedlings --

Rule of law is absolutely essential for anything we want to do in Iraq, the Middle East, anywhere else.Nobody will invest a penny without rule of law.

Oh, and from OMAR of IRAQ THE MODEL, there is this comment so strangely reminiscent of our own experience in the early colonial days with the Spanish friars, their vast holdings in land and other properties and institutions.--

One important note I think I need to mention, Iraq had succeeded in bringing a tyrant to trial and it is just a matter of time till justice is served. The question now, will we be able to bring those who are currently immune (and I mean clerics) to a court of law incase they break the law. I think this has to be the next step we Iraqis need to start working on..

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