PRIVACY OF COMMUNICATION AND CORRESPONDENCE SEC. 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. History Prior to the 1935 Constitution, the controlling doctrine was that search and seizure did not prohibit wiretapping or eavesdropping arrangements, following the principle in Olmstead v. United States. In that case, the US judiciary ruled that where there is no physical trespass there is no search, and where the object is not tangible it cannot be seized. This was anchored on the fourth amendment of the US Constitution, under which provision the US judiciary held that tangibles are house, person, papers, effects, and that there is no seizure unless it is specifically this things which are brought into the control of the law. The framers of the 1935 Constitution, however, realized the inadequacy of this definition when they framed our privacy law. In effect, they anticipated future legal development in the US. As such, our privacy law has always recognized, generally, the invalidity of illegal wiretaps, even preceding the doctrinal Katz v. United States case of 1967, which overruled the Olmstead doctrine and made illegal wiretapping with or without physical intrusion, making it part of illegal search and seizure.

any security officer with custodial responsibility over a detainee may undertake such measures to secure his [own] safety and prevent [the detainees] escape. By the very fact of their detention, pre-trial detainees and convicted prisoners have a diminished expectation of privacy rights. - Trillanes v. Cabuay 2. (objective) THE EXPECTATION IS SOMETHING THAT SOCIETY CONSIDERS REASONABLE The law prohibits overhearing, intercepting, or recording of private communications, but not those which are public in character. Navarro v. Court of Appeals

Coverage 1. 2. 3. 4. 5. Letters Messages Phone Calls Telegrams Other analogous modes of communication.

Lawful Intrusion 1. LAWFUL ORDER OF THE COURT In Material Distributor v. Natividad, It is submitted that the requirement of probable cause in Section 2, Article III, should be followed. The Court reasoned that the right to privacy is but an aspect of the right to be secure in ones person. 2. WHEN PUBLIC SAFETY OR ORDER REQUIRES

Requisites In Pollo v. Constantino-David: 1. (subjective) AN EXPECTATION OF PRIVACY

With judicial authority: Under the Anti-Wiretapping Law (RA 4200, Sec. 3), court-authorized taps are allowed under very specific conditions, for the crimes of treason, espionage,

provocation of war, provoking disloyalty in case of war, piracy, high-seas mutiny, rebellion, conspiracy and proposal to commit rebellion, inciting rebellion, sedition, conspiracy to commit sedition, inciting to sedition, and kidnapping. Under the Human Security Act (RA 9372, Sec. 7), the Court of Appeals may allow wiretapping, electronic surveillance, tracking, for suspected terrorist activity, as long communications between lawyers and clients, doctors and patients, journalists and their sources, and confidential business correspondence are excluded. Without judicial authority: Must be based upon official government assessment that public safety demands such an intrusion. Public safety means the security of human lives, liberty, and property against the activities of invaders, insurrectionists, and rebels, as defined by the Constitutional Convention Session of November 25, 1972. It must be exercised according to law, thus by the President who has executive power or a duly-authorized executive agent. The exercise of this power is subject to judicial review.

Effect of Violations ANY EVIDENCE OBTAINED IN VIOLATION OF THIS OR THE PRECEDING SECTION SHALL BE INADMISSIBLE FOR ANY PURPOSE IN ANY PROCEEDING. This defense is purely personal Stonehill v. Diokno Unauthorized recordings of telephone conversations are not admissible. Salcedo-Ordonez v. Court of Appeals

Remedy Writ of Habeas Data (AM 08-1-16-SC, Sec. 1) The writ of habeas data is a remedy available to any person whose right to life, liberty, or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting, or storing of data or information regarding the person, family, home, and correspondence of the aggrieved party. Intended to ensure the human right to privacy. May be sought to control the flow of data about a person, or to destroy data gathered in violation of privacy.

Anti-Wiretapping Act (RA 4200) Prohibits any person who is not authorized by all the parties to a private communication or spoken word from tapping any wire or cable, or by using any device or arrangement, to secretly overhear, intercept, or record the communication, or to communicate or transmit such communication to any other person. On tape recorders: illegal the law does not make a distinction - Ramirez v. Court of Appeals On telephone extensions: not among the devices covered - Gaanan v. Intermediate Appellate Court

Bar Questions 2009 (VI) Q: In a criminal prosecution for murder, the prosecution presented, as witness, an employee of the Manila Hotel who produced in court a videotape recording showing the heated exchange between the accused and the victim that took place at the lobby of the hotel barely 30 minutes before the killing. The accused objects to the admission of the videotape recording on the ground that it was taken without his knowledge or consent, in violation of his right to privacy and the Anti-Wire Tapping law. Resolve the objection with reasons.

A: The objection should be overruled. What the law prohibits is the overhearing, intercepting, and recording of private communications. Since the exchange of heated words was not private, its videotape recording was not prohibited. (Navarro v. Court of Appeals) 2001 (XII) Q: "A" has a telephone line with an extension. One day, "A" was talking to "B" over the telephone. "A" conspired with his friend "C", who was at the end of the extension line listening to "A's" telephone conversation with "B" in order to overhear and tape-record the conversation wherein "B" confidentially admitted that with evident premeditation, he (B) killed "D" for having cheated him in their business partnership. "B" was not aware that the telephone conversation was being tape-recorded. In the criminal case against "B" for murder, is the tape-recorded conversation containing his admission admissible in evidence? Why? A: The tape-recorded conversation is not admissible in evidence. As held in Salcedo-Ortanez vs. Court of Appeals. Republic Act No. 4200 [Anti-Wiretapping Act] makes the tape-recording of a telephone conversation done without the authorization of all the parties to the conversation, inadmissible in evidence. In addition, the taping of the conversation violated the guarantee of privacy of communications enunciated in Section 3, Article III of the Constitution. 1998 (VII) Q: The police had suspicions that Juan Samson, member of the subversive New Proletarian Army, was using the mail for propaganda purposes in gaining new adherents to its cause. The Chief of Police of Bantolan, Lanao del Sur ordered the Postmaster of the town to intercept and open all mail addressed to and coming from Juan Samson in the interest of the national security. Was the order of the Chief of Police valid? A: No, the order of the Chief of Police is not valid, because there is no law which authorizes him to order the Postmaster to open the letters addressed to and coming from Juan Samson. An official in the Executive Department cannot interfere with the privacy of correspondence and communication in the

absence of a law authorizing him to do so or a lawful order of the court. Section 3(1), Article III of the Constitution provides: "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." 1989 (8) Q: While serving sentence in Muntinlupa for the crime of theft, "X" stabbed dead one of his guards, "X" was charged with murder. During his trial, the prosecution introduced as evidence a letter written in prison by "X" to his wife tending to establish that the crime of murder was the result of premeditation. The letter was written voluntarily. In the course of inspection, it was opened and read by a warden pursuant to the rules of discipline of the Bureau of Prisons and considering its contents, the letter was turned over to the prosecutor. The lawyer of "X" objected to the presentation of the letter and moved for its return on the ground that it violates the right of "X" against unlawful search and seizure. Decide. A: The objection of the lawyer must be sustained, Section 3(1), Article IV of the 1987 Constitution provides: "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." There was no court order which authorized the warden to read the letter of "X". Neither is there any law specifically authorizing the Bureau of Prisons to read the letter of "X", Under Section 3(1), Article III of the 1987 Constitution, to interfere with any correspondence when there is no court order, there must be a law authorizing it in the interest of public safety or order. The ruling of the United States Supreme Court in the case of Stroud vs. United States, is not applicable here, because Section 3(1), Article III of the 1987 Constitution has no counterpart in the American Constitution. Hence, in accordance with Section 3(2), Article III of the 1987 Constitution, the letter is inadmissible in evidence. A: (ALTERNATIVE) The objection of the lawyer must be overruled. In Hudson vs. Palmer, it was held that the constitutional prohibition against illegal

searches and seizures does not extend to the confines of the prison. In Stroud vs. United States, the United States Supreme Court held that letters voluntarily written by a prisoner and examined by the warden which contained incriminatory statements were admissible in evidence. Their inspection by the prison authorities did not violate the constitutional prohibition against illegal searches and seizures. This is an established practice reasonably designed to promote discipline within the penitentiary.

The wife of Juan Casanova wrote a letter to the City Health Officer to have her formerly philandering husband confined in some isolated leprosarium. Juan Casanova challenged the constitutionality of the law as violating his liberty of abode. Will the suit prosper? A: No, the suit will not prosper. Section 6, Article III of the Constitution provides: "The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court." The liberty of abode is subject to the police power of the State. Requiring the segregation of lepers is a valid exercise of police power. In Lorenzo us. Director of Health, 598, the Supreme Court held: "Judicial notice will be taken of the fact that leprosy is commonly believed to be an infectious disease tending to cause one afflicted with it to be shunned and excluded from society, and that compulsory segregation of lepers as a means of preventing the spread of the disease is supported by high scientific authority." 1996 (2) Q: The military commander-in charge of the operation against rebel groups directed the inhabitants of the island which would be the target of attack by government forces to evacuate the area and offered the residents temporary military hamlet. Can the military commander force the residents to transfer their places of abode without a court order? Explain. A: No, the military commander cannot compel the residents to transfer their places of abode without a court order. Under Section 6, Article III of the Constitution, a lawful order of the court is required before the liberty of abode and of changing the same can be impaired. A: (ALTERNATIVE) Yes, the military commander can compel the residents to transfer their places of abode without a court order. If there is no reasonable time to get a court order and the change of abode is merely temporary, because of the exigency, this exercise of police power may be justified.

LIBERTY OF ABODE SEC. 6 THE LIBERTY OF ABODE AND OF CHANGING THE SAME WITHIN THE LIMITS PRESCRIBED BY LAW SHALL NOT BE IMPAIRED EXCEPT UPON LAWFUL ORDER OF THE COURT. NEITHER SHALL THE RIGHT TO TRAVEL BE IMPAIRED EXCEPT IN THE INTEREST OF NATIONAL SECURITY, PUBLIC SAFETY, OR PUBLIC HEALTH, AS MAY BE PROVIDED BY LAW.

Liberty of Abode The right to choose ones residence, to leave whenever he pleases, and to travel wherever he wills.

Limitations Only upon a lawful order of the court.

Bar Questions 1998 (VIII) Q: Juan Casanova contracted Hansen's disease (leprosy) with open lesions. A law requires that lepers be isolated upon petition of the City Health Officer.