Illegal interception of computer data is defined and penalized under the Cybercrime Prevention Act of 2012. The crime of “illegal interception” is the “interception made by technical means without right of any non-public transmission of computer data to, from, or within a computer system including electromagnetic emissions from a computer system carrying such computer data.” As far as the unauthorized intrusion into the computer system, this is akin to the Anti-Wiretapping Law and the Anti-Photo and Video Voyeurism Act of 2009, both of which are discussed below for easy reference.
The Anti-Wiretapping Law (Republic Act No. 4200) prohibits the act of tapping 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 dictaphone or walkie-talkie or tape recorder, or however otherwise described. The prohibition against wiretapping does not cover an extension telephone line, which is a common device. People should safely presume that the party he is calling at the other end of the line probably has an extension telephone and he runs the risk of a third party listening as in the case of a party line or a telephone unit which shares its line with another. In passing the Anti-Wiretapping Law, lawmakers were more concerned with penalizing the act of recording than the act of merely listening to a telephone conversation. [Ganaan vs. IAC, G.R. No. L-69809, 16 October 1986].
Law enforcement officers, however, may secure a judicial order or warrant, authorizing them to conduct wiretapping in the following cases:
- provoking war and disloyalty in case of war
- mutiny in the high seas
- conspiracy and proposal to commit rebellion
- inciting to rebellion
- conspiracy to commit sedition
- inciting to sedition
- violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security
- violations of the Human Security Act of 2007 (Republic Act No. 9372)
In the absence of a warrant, the only instance when recording is authorized is when all parties to the conversation consent or authorize the third party to listen and/or record the conversation. Any evidence gathered in violation of the Anti-Wiretapping law is inadmissible.
The Anti-Photo and Video Voyeurism Act of 2009 (Republic Act No. 9995) penalizes, with imprisonment ranging from 3 to 7 years, any person who commits the following acts:
- (a) To take photo or video coverage of a person or group of persons performing sexual act or any similar activity or to capture an image of the private area of a person/s such as the naked or undergarment clad genitals, public area, buttocks or female breast without the consent of the person/s involved and under circumstances in which the person/s has/have a reasonable expectation of privacy;
- (b) To copy or reproduce, or to cause to be copied or reproduced, such photo or video or recording of sexual act or any similar activity with or without consideration;
- (c) To sell or distribute, or cause to be sold or distributed, such photo or video or recording of sexual act, whether it be the original copy or reproduction thereof; or
- (d) To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, internet, cellular phones and other similar means or device.
Unlike the Anti-Wiretapping Law, which excuses a person from any liability if all the parties consent to the recording, the Anti-Photo and Video Voyeurism Act of 2009 explicitly provides that the prohibition under paragraphs (b), (c) and (d) shall apply notwithstanding that consent to record or take photo or video coverage of the same was given by such person/s. [See Primer]
Just like in the Anti-Wiretapping Law, public enforcement agencies may apply for a warrant to use the record or any copy thereof as evidence in any civil, criminal investigation or trial of the crime of photo or video voyeurism. The written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he/she may produce, and upon showing that there are reasonable grounds to believe that photo or video voyeurism has been committed or is about to be committed, and that the evidence to be obtained is essential to the conviction of any person for, or to the solution or prevention of such, crime.
INTERCEPTION OF COMPUTER DATA; WARRANT
Illegal interception, as noted above, is penalized under the Cybercrime Prevention Act of 2012 (Republic Act No. 10175). However, interception of computer data may be validly carried out by virtue of a court-issued warrant, duly applied for by law enforcement authorities. This kind of warrant, called a Warrant to Intercept Computer Data (WICD), is distinct from the other warrants (WDCD, WECD, WSSECD) and provided under the Rule on Cybercrime Warrants issued by the Supreme Court pursuant to the Republic Act No. 10175.
WHAT IS WICD
A WICD is an order in writing issued in the name of the People of the Philippines, signed by a judge, upon application of law enforcement authorities, authorizing the latter to carry out any or all of the following activities: (a) listening to, (b) recording, (c) monitoring, or (d) surveillance of the content of communications, including procuring of the content of computer data, either directly, through access and use of a computer system or indirectly, through the use of electronic eavesdropping or tapping devices, at the same time that the communication is occurring.
CONTENTS OF APPLICATION
The verified application for a WICD, as well as the supporting affidavits, shall state the following essential facts:
- 1. The probable offense involved;
- 2. Relevance and necessity of the communication or computer data sought to be intercepted for the purpose of the investigation;
- 3. Names of the individuals or entities whose communication or computer data is sought to be intercepted, including the names of the individuals or entities who have control, possession or access thereto, if available;
- 4. Particular description of the communication or computer data sought to be intercepted;
- 5. Place where the interception of communication or computer data is to be enforced, if available;
- 6. Manner or method by which the interception of communication or computer data is to be carried out, if available; and
- 7. Other relevant information that will persuade the court that there is a probable cause to issue a WICD.
ISSUANCE OF WICD
If the judge is satisfied that there is probable cause to believe that the facts upon which the application for WICD exists, he shall issue the WICD, which must be substantially in the form prescribed under the Rule on Cybercrime Warrants.
RETURN ON THE WICD
Within 48 hours from implementation or after the expiration of the effectivity of the WICD, whichever comes first, the authorized law enforcement officers shall submit a return on the WICD to the court that issued it and simultaneously turn-over the custody of the intercepted communication or computer data thereto. [See Custody of Computer Data]
It is the duty of the issuing judge to ascertain if the return has been made, and if none, to summon the law enforcement officer to whom the WICD was issued and require him to explain why no return was made, without prejudice to any action for contempt.
NOTICE AFTER FILING OF RETURN
Within 30 days from the filing of the return, or, if no return is filed, from the lapse of the 48 hour period to file the return, the authorized law enforcement officer has the duty to notify the personwhose communications or computer data have been intercepted of the activities conducted pursuant to the WICD. If a return has been filed, a copy of the same shall be attached to the notice. On the other hand, if no return has been filed, the notice shall state the details of the interception activities, including the contents of the intercepted communication or computer data.
Within 10 days from notice, the person whose communications or computer data have been intercepted may challenge, by motion, the legality of the interception before the issuing court.
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