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Commentary

The privacy of communication

/ 05:10 AM September 16, 2017

The current tiff between the justice secretary and a senator traverses the constitutional domain, particularly the almost-sacrosanct right to privacy of communication. The Bill of Rights in the 1987 Constitution, as did the previous constitutions, provides in no uncertain terms 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 prescribed by law. The constitutional guarantee on privacy includes a bar on the use of improperly obtained private communication as evidence in any proceeding.

The Constitution likewise guarantees an individual or juridical entity against unreasonable searches and seizures of papers and effects. This guarantee includes communications.

Human beings are social animals, and their need to communicate is as essential as their existence. Human communication in different languages takes varied forms—a sign, a paper-based script or print, a spoken word, and, in the present day, a digital format. The latter medium of communication requires an electronic gadget that would be paper prior to the internet age.

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Primitive long-distance communication began with smoke billows, and the semaphore. After electricity was discovered, the use of the electromagnet made possible the invisible transmission of communication through telegraphy. On May 24, 1834, Samuel Morse transmitted the first sentence by telegraph. In the last two global conflicts of the 20th century, battles were won or lost with the use of telegraph.

In the early 1870s, while Alexander Graham Bell was experimenting with the telegraph, he discovered that it was possible to transmit human voice through electricity. On March 7, 1876, he was granted a patent for the telephone.

For over a century, long-distance communication and global trade depended on the telephone and telegraph, both based on analog technology—a system of transmission of variable electronic signals with output proportionate to the input.

As with most technologies, mathematics paved the way for the digitization of communication. In 1948, Shannon’s “Mathematical Theory of Communication” heralded the digital age. With the advent of computers in the 1980s, communication shifted from analog technology to digital.

Freeman and Louca identify the scale of technological change from the first Industrial Revolution based on water-powered mechanization; the second Kondratiev wave enabled by steam-powered technology; the third, characterized by the electrification of social and productive organization; the fourth, by motorization and the automated mobilization of society; and the most recent, by the digitization of social systems. It is human progress which Hilbert describes as the “Long Waves of Social Evolution.”

Technology wrought ease of communication, but also created a concomitant vulnerability of its privacy. Republic Act No. 4200, or the antiwiretapping law, was enacted to protect the privacy of communication: It is unlawful to secretly overhear, intercept, or record a communication or spoken word. It is also unlawful for any person to knowingly possess any record of such communication or spoken word, or to replay, communicate the contents, or furnish transcriptions to any other person.

An overzealous media man reportedly captured with a camera the justice secretary’s “text messages.” It was obviously an unauthorized recording or copying of a private communication within the context of RA 4200. A senator took possession of a copy of the private communication, and even used it to demand the justice secretary’s resignation. Had the copy been used in any proceeding, the way it was obtained would be inadmissible.

It is bad enough that a member of the Fourth Estate crosses constitutional lines; it is even worse that the government or a high official will abet or benefit from it. The privacy of communication must be respected by all and sundry.

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Frank E. Lobrigo practiced law for 20 years. He is a law lecturer and JSD student at San Beda College Graduate School of Law in Manila.

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