Republic of the Philippin
HOUSE OF THE REPRESENTATIVES
‘Quezon City. Metro Manila

ixteenth Congress
st Regular Session

3097

HOUSE BILL NO.

Introduced by Honorable Arthur R. Defensor, Jr.

EXPLANATORY NOTE

The right to privacy had been long recognized as among the fundamental rights that
inhere to every person by virtue solely of his humanity. Indeed, it is a right most valued by
civilized men that commands respect in any jurisdiction governed by the rule of law. Under
Sections 2 and 3 of the Bill of Rights in our Constitution, the right to privacy is held sacred by
commanding:

“Section 2, The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant and warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.

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.

(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.”

To preserve the enjoyment of such right by the people, the Anti-Wiretapping
Law was enacted by Congress on 19 June 1965, almost fifty (50) years ago. Since then,
the unstoppable advancement of information and communication technology has
operated to diminish traditional zones of privacy enjoyed by the people. The coming of
the digital age ushered in an era of unprecedented convenience and interconnectivity


which revolutionized the life of the ordinary Filipino. The developments in technology
proliferated seemingly benign and innocuous devices which coupled by malice and
mischief, possess the potential to undermine the very civil liberties held dear in our
democratic society.

Unfortunately, the law has failed to keep a pace of the continuously evolving
realities thrust upon us by the technologies achieved by human ingenuity. Moreover,
the interest of government in maintaining security, peace, and order, as well as the
indiscriminate enforcement of the law demand equal consideration for these interests
are likewise essential in any civilized and democratic society.

At present, there are four (4) modes by which an individual may communicate
with others: (1) oral, (2) written, (3) wire, and (4) electronic communications. With the
exception of written communications, all these modes are ephemeral and non-corporeal
in character and for this reason, are easily susceptible to interception, reproduction, and
disclosure with the numerous digital devices possessing an incidental capacity to do so.

This Bill seeks to improve the old Anti-Wiretapping law by expanding the
general prohibition to the interception and disclosure or oral, wire, and electronic
communications. It provides for adaptable statutory standards designed to address
future advancements and developments in information and communication technology.
It likewise seeks to strike a delicate balance between the competing yet, equally
compelling, interest to the right to privacy of individuals and the maintenant
and order and law enforcement by drawing concepts from the
Communications Privacy Act (18 U.S.C. 2510-2522) of the United States of Ameri

of peace

The foregoing duly considered, the approval of this bill is earnestly sought.

ZAZA

ARTHUR R. DEFENSOR, JR.



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Republic of the Philippines
HOUSE OF REPRESENTATIVES
Quezon City

SIXTEENTH CONGRESS
First Regular Session

3097

HOUSE BILL NO.

Introduced by Representative Arthur R. Defensor, Jr.

AN ACT
PROHIBITING THE INTERCEPTION AND DISCLOSURE OF ORAL, WIRE,
OR ELECTRONIC COMMUNICATIONS AND OTHER VIOLATIONS OF THE
RIGHT TO PRIVACY OF COMMUNICATION AND FOR OTHER PURPOSES

Section 1. Short Title. - This Act shall be known as the “Privacy of
Communications Act

Section 2. Declaration of Policy. ~ It is the policy of the State to ensure the
inviolability of the right of the people to be the privacy of communication and
correspondence as provided by the 1987 Constitution. However it is likewise
recognized that such right is not absolute in view of other equally compelling state
interests such as the right of the State to investigate, prosecute, and punish violators
of the law. Accordingly, such right of privacy may be overcome by lawful order of
the court, or when public safety or order requires as provided by law.

As new technologies continue to be dis

overed and become commonplace in
an ever increasingly digitalized world, it is recognized that the law must ever keep
apace in evaluating its impact on privacy rights and to ensure that the right of
privacy enjoyed by the people is adequately guaranteed by law

Section 3. Declaration of Terms. - For the purposes of this Act, unless the
context indicates otherwise:

(a) ggrieved person” refers to any person, natural or juridical,
whose communications, whether wire, oral, or electronic, were intercepted in
violation of the provisions of this Act.


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(b) “Contents” as used in this Act and when used with respect to
any wire, oral, or electronic communication, includes any information
concerning the substance, purport, or meaning of that communication.

(6) _ “Court of competent jurisdiction” refers to any regional trial
court, the Court of Tax Appeals, Court of Appeals, Sandiganbayan, and the
Supreme Court having or in the exercise of lawful jurisdiction under the law
and the Constitution

(a) “Electronic communication” refers to any communication made
in whole through the means of electronic data messages or electronic
documents as defined by Republic Act No. 8792 and the Rules on Electronic
Documents and regardless of the form of output thereof.

(e) “Electronic, mechanical, or other communication intercepting
device” means any device or apparatus whose primary purpose is the
surreptitious interception of a wire, oral, or electronic communication as
defined by this Act other than—

(1) any telephone, cellular phone, or telegraph instrument,
equipment or facility, or any component thereof,

(i) furnished to the subscriber or user by a provider of
wire or electronic communication service in the ordinary course of
its business and being used by the subscriber or user in the
ordinary course of its business or furnished by such subscriber or
user for connection to the facilities of such service and used in the
ordinary course of its business; or

(ii) being used by a provider of wire or electronic
communication service in the ordinary course of its business, or by
an investigative or law enforcement officer in the ordinary course
of his duties;

(2) a hearing aid or similar device being used to correct subnormal
hearing to not better than normal.

() “Intercept” refers to the acquisition of the contents, either in
whole or in part, of any wire, electronic, or oral communication through the
use of any electronic, mechanical, or other device.

(g) “Investigative or law enforcement officer” means any officer or
agent of the Republic of ‘the Philippines or any political subdivision thereof,
who is empowered by law to conduct investigations of or to make arrests for
criminal offenses penalized by law, and any attorney authorized by law to
prosecute or participate in the prosecution of such offenses.



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(h) “Oral communication” refers to any communication uttered,
spoken, or otherwise made by gestures, facial expressions and such other
communication not expressed in writing by a person exhibiting an
expectation that such communication is not subject to interception under
circumstances justifying such expectation, but such term does not include any
electronic communication as defined by this Act.

() “Wire communication” refers to any aural transfer made in
whole or in part through the use of facilities for the transmission of
communications by the aid of wire, cable, or other like connection between
the point of origin and the point of reception (including the use of such
connection in a switching station) furnished or operated by any person
engaged in providing or operating such facilities for the transmission of
interstate or foreign communications or communications affecting, interstate
or foreign commerce.

() “Computer trespasser” —

(1) means a person who accesses a protected computer without
authorization and thus has no reasonable expectation of
privacy in any communication transmitted to, through, or
from the protected computer; and

(2) does not include a person known by the owner or operator
of the protected computer to have an existing contractual
relationship with the owner or operator of the protected
computer for access to all or part of the protected computer

Section 4. Coverage. - This Act shall cover all oral, wire, and electronic
communications made in whole or in part within the territorial jurisdiction of the
Republic of the Philippines.

Section 5. Prohibition against Interception of Communication. - The act of
intercepting or attempting to intercept any wire, oral, or electronic communication
covered by this Act made by and between any person shall be prohibited and
penalized in accordance with Section _ of this Act.

Section 6. Exceptions to the Prohibition against Interception of Communication. ~
Except as otherwise provided by law, the following shall be excepted from the
prohibition provided in the immediately preceding Section:

(a) Any interception of communication made pursuant to a lawful
surveillance conducted in accordance with the provisions of this Act;


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(b) Any interception of communication made by an officer,
employee, or agent of a provider of wire or electronic communication service,
whose facilities are used in the transmission of a wire or electronic
communication made in the normal course of his employment while engaged
in any activity which is a necessary incident to the rendition of his service or
to the protection of the rights or property of the provider of that service,
except that a provider of wire communication service public shall not utilize
service observing or random monitoring except for mechanical or service
quality control checks;

(©) Any interception of communication made by a person acting
pursuant to or in connection with a lawful surveillance or criminal
investigation made by investigative or law enforcement officers in accordance
with the provisions of this Act, where such person is a party to the
communication;

(d) Any interception of communication made where one of the
parties to the communication has given prior consent to such interception;

(e) Any interception of electronic communication made through an
electronic communication m that is readily accessible to the general
public;

() Any interception of electronic communication by radio which

(1) Is transmitted by any station for the use of the
general public;

(2) Relates to ships, aircraft, vehicles, or persons in
distress or by any governmental, law enforcement, civil
defense, private land mobile, or public safety
communications system readily accessible to the general
public;

(3) Is made by a_ station operating on an
authorized frequency within the bands allocated to or made
available to the general public; and

(4) Is made by any marine or aeronautical
communications system.

(g) Any interception of communication made by a person acting
under color of law of a computer trespasser transmitted to, through, or from a
computer which is protected from unwarranted or unlawful access by its
owner or operator protected computer; Provided that:


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(1) | The owner or operator of the protected
computer authorizes the interception of the computer
trespasser’s communications on the protected computer;

(2) The person making the interception is engaged
in lawful surveillance or criminal investigation in
accordance with the provisions of this Act; and

(3) Such interception does not acquire
communications other than those transmitted to or from the
computer trespasser.

Section 7. Prohibition against Disclosure of Intercepted Communication, - The act
of intentionally disclosing or who attempts to disclose to any person other than the
intended recipient the contents of any wire, oral, or electronic communication
obtained in violation of this Act shall be prohibited and penalized in accordance
with Section _ of this Act.

The act of disclosing or attempting to disclose to any person other than the
intended recipient the contents of any wire, oral, or electronic communication
properly obtained pursuant to lawful surveillance or criminal investigation in
accordance with this Act with intent to improperly obstruct, impede, or interfere
with such lawful surveillance or criminal investigation, shall be prohibited and
penalized in accordance with Section __ of this Act.

Section 8. Exceptions to Prohibition against Disclosure of intercepted Communication.
~ Except as otherwise provided by law, the following shall be excepted from the
prohibition provided in the immediately preceding Section:

(a) Where the disclosure of the intercepted communication is made
with the consent of the originator or any addressee or intended recipient of
such communication; and

(6) Where the disclosure of the intercepted communication is made
to a person employed or authorized, or whose facilities are used, to forward
such communication to its destination.

Section 9. Prohibition against the Manufacture of Wire, Oral, or Electronic
Communication Intercepting Devices. - The manufacture or assembly of a device whose
primary use, purpose, or function is the surreptitious interception of wire, oral, or
electronic communications shall be prohibited and penalized in accordance with
Section __ of this Act, except when such person who engages in the manufacture or
assembly of a device as defined by this Section obtains the written approval of the
National Telecommunications Commission (NTC).


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Section 10. Prohibition against the Possession of Wire, Oral, or Electronic
Communication Intercepting Devices. - The possession by a person of an electronic,
mechanical, or other communications intercepting device without a prior written
approval from the NTC and after payment of proper registration fees therefore shall
be prohibited and penalized in accordance with Section __ of this Act; Provided that,
no such registration fees shall be charged for wire, oral, or electronic communication
intercepting devices procured by an investigative or law enforcement officer as
defined by this Act.

Section 11. Habeas Data as Remedy against illegal Interception of Communication,
- Upon a showing that any person is engaged or is about to engage in any act which
constitutes a violation or tends to violate the provisions of this Act, the aggrieved
party may file, before a court of competent jurisdiction, a petition for the issuance of
a writ of habeas data to enjoin the act complained of, or to order the deletion or
destruction of the communication illegally intercepted. Such court may likewise
issue a writ of injunction, whether preliminary or final, and grant any such reliefs as
may be just and equitable under the circumstances.

Section 12. Recovery of Civil Damages. - Any person whose wire, oral, or
electronic communication had been intercepted, disclosed, or intentionally used in
violation of this Act may file a civil action for recovery of damages from the person
or entity, other than the Republic of the Philippines or any of its departments,
agencies, or political subdivisions, which engaged in such unlawful act.

Section 13. Statute of Limitations. ~ An action for civil liability pursuant to the
immediately preceding Section must be filed within two years from the date the
plaintiff knew or reasonably should have known the illegal interception of
communication or illegal use or disclosure of such communication intercepted.

Section 14. Administrative Liability. - Any act or omission committed by an
officer, employee, or agent of the Republic of the Philippines or any of its
departments, agencies, or political subdivisions which constitutes a violation of this
Act shalll constitute grave misconduct or conduct prejudicial to the best interest of
the service and accordingly be grounds for administrative liability pursuant to
pertinent rules and regulations governing the Civil Service; Provided that, nothing in
this Section shall be construed to preclude or prevent the filing of appropriate
criminal charges against such officer, employee, or agent for a violation of this Act.

Section 15. Assistance to Lawful Surveillance or Criminal Investigation. -
Notwithstanding any contrary provision of law, investigative or law enforcement
officers are hereby authorized to intercept oral, wire, or electronic communication
pursuant to a lawful surveillance or criminal investigation; Provided thal, no
interception of communication pursuant to a lawful surveillance or criminal
investigation shall be allowed without an order by a court of competent jurisdiction
based probable cause to be determined personally by the judge after examination
under oath or affirmation of the applicant and the witnesses he may produce,


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particularly describing the place and persons subject of the surveillance; Provided
further, that such order shall clearly delineate the extent, scope, and limits of the
surveillance.

Providers of wire or electronic communication service, their officers,
employees, and agents, landlords, custodians, or other persons, are authorized to
provide information, facilities, or technical assistance to persons authorized to
intercept wire, oral, or electronic communications in accordance with this Section;

Section 16. Exclusionary Rule. - Any form of communication obtained or
secured in violation of or non-compliance with the procedures provided by this Act
and its implementing rules and regulations by any investigative or law enforcement
officer shall not be admissible in evidence in any judicial, quasi-judicial, legislative
or administrative hearing or investigation.

Section 17. Penal Provisions. - Any person who knowingly or wilfully violates
the provisions of this Act shall be punished by imprisonment of not less than six (6)
months to not more than six (6) years or a fine of not less than One Hundred
Thousand Pesos (P100,000) and not more than Five Hundred Thousand Pesos
(P500,000),

Section 18. Non-applicability to written communication. ~ Notwithstanding any
provision of this Act to the contrary, this Act shall not apply to any communication
made in writing or communicated through the means of any material containing
letters, words, numbers, figures, symbols or other modes of written expression.

Section 19, Implementing Rules and Regulations. ~ The Department of Justice
(DO)), DILG, DOTC, and DND, shall provide the necessary implementing rules and
regulations within thirty (30) days upon the approval of this Act and after its
publication in at least two (2) newspapers of general circulation.

Section 20. Repealing Clause. ~ All provisions of laws and rules inconsistent
with the provisions of this Act are hereby repealed or amended accordingly.

Section 21. Separability Clause. ~ If, for any reason, any section or provision of
this Act is declared unconstitutional or invalid, the other sections or provisions not
affected thereby shall remain in full force and effect.

Section 22. Effectivity Clause. - This Act shall take effect after fifteen (15) days
following its publication in a newspaper of general _ circulation.