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Legal Eagle: Is filming a traffic apprehension a wiretapping offense?

Legal Eagle: Is filming a traffic apprehension a wiretapping offense? image

Text: Atty. Paul Cornelius Castillo / Photos: Brent Co | posted October 02, 2015 02:43

Tapping wiretapping

Is video recording during a traffic apprehension considered as wiretapping? Reports of some parties claiming it to be so have sparked debate. Based on current legislation and case law, it is arguably not. 

Unauthorized wiretapping is punished by Republic Act 4200. This 50 year old law prohibits “any person, not being authorized by all the parties to any private communication or spoken word, to tap 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 detectaphone or walkie-talkie or tape-recorder, or however otherwise described”

It is apparent that secretly overhearing, intercepting, or recording a “private communication” is prohibited (G.R. No. 121087, 1999). A communication between a traffic officer and a motorist, at the time of apprehension, does not appear to be private. 

The apprehending officer has no “reasonable expectation of privacy” for official acts done on duty. A traffic officer’s job purposely requires him or her to be out in public roads. The act of flagging down a vehicle for a traffic violation is done in public, and the discussion with the motorist is performed in the open, viewed by others and certainly heard by passersby. 

It is difficult to conclude that under the foregoing circumstances, the communication between a traffic officer and a motorist is “private”, such that it receives protection from unauthorized recording. The Supreme Court’s eloquent pronouncement in Sarmiento v. Morato, G.R. No. 92541 (1991) may apply by analogy: 

“The right to privacy belongs to the individual acting in his private capacity and not to a governmental agency or officers tasked with, and acting in, the discharge of public duties. There can be no invasion of privacy in the case at bar since what is sought to be divulged is a product of action undertaken in the course of performing official functions. To declare otherwise would be to clothe every public official with an impregnable mantle of protection against public scrutiny for their official acts.” 

In the said case, voting slips of MTRCB officials were sought to be examined. A denial of this request, on the ground of privacy, was reversed by the High Court. Admittedly, a video recording of a traffic apprehension is, strictly speaking, not a ‘product of action’ in the course of official duty. This is because the recording usually stems from the private individual and not the public official.

Just like the voting slips, however, a video recording is the “documentation” of a public official’s acts and decisions while on duty. Detailing as it does acts done in an official capacity, it is hard to posit that the recording contains private matters.

Even if the conversation is deemed private, the modern tools through which recordings are done are arguably not specifically embraced by law. Since criminal statutes are construed in favor of the accused, present-day tech such as mobile phones and dash cameras could be outside the ambit of RA 4200. While the law makes illegal the use of “any other device or arrangement”, to secretly overhear or record a private communication, the Court has given such phrase a rather limited scope.

In the 1986 case Gaanan v. IAC (G.R. No. L-69809), the Court said that “device or arrangement”, as used in RA 4200, should be thought to mean instruments the use of which would be tantamount to tapping a phone line. The phone extension line involved in Ganaan was declared not to be in the same category as dictaphone, dictagraph, or other devices mentioned in RA 4200.

In the same manner, it can be argued that modern day recording tech is not embraced in RA 4200, even under the phrase “any other device or arrangement”. Someone recording with a mobile phone may argue that his or her device is not covered by the law. Admittedly, however, Gaanan involved the factual milieu of a telephone line and one overhearing, not recording, a private conversation. How actual circumstances in this 3 decade old case affect its applicability today is an item for legal discussion.

This is also due to the fact that in 2013 (G.R. No. 179736), the Supreme Court notably said: “In this day and age, video surveillance cameras are installed practically everywhere for the protection and safety of everyone. xxx Nor should these cameras be used to pry into the privacy of another’s residence or business office as it would be no different from eavesdropping, which is a crime under Republic Act No. 4200 or the Anti- Wiretapping Law.”

Whether the foregoing pronouncement will usher in RA 4200’s applicability to current technologies, in a proper case brought before the courts, is something that remains to be seen. 

Until such time, it appears that recording conversations in a traffic apprehension is not covered by RA 4200, on the submission that discussions therein are not private and that the wording of the law is limitedly construed.