In one of my MCLE lectures on the “Handling of Electronic Evidence,” a lawyer relayed to me an issue that sooner or later will confront the Philippine Supreme Court and challenge its Rules of Electronic Evidence and its perception of electronic data.
The lawyer related a controversy regarding the SD card in a mobile phone of the murdered victim that contains the records of conversations between the victim and the alleged killer. An opposing counsel objected to the presentation of the evidence because it allegedly violated the Anti-Wire Tapping act of the Philippines.
This matter raises several significant issues that I have discussed several times in my MCLE lectures this year for the Integrated Bar of the Philippines Caloocan Malabon Navotas (CALMANA) Chapter (February 6, 2016), Laguna Chapter (February 13, 2016), Leyte Chapter (April 28, 2016), Negros Oriental Chapter (May 17, 2016), Lanao del Norte (July 12, 2016), Zamboanga del Norte Chapter (August 25, 2016) and the Misamis Oriental Chapter (September 8, 20160. I have also discussed these in other MCLE lectures given by other providers, the most recent being last October 7, 2016 for the ACLEx MCLE seminars at Hotel Cielito, Makati.
Dr. Atty. Noel G. Ramiscal at IBP Cagayan de Oro, September 7, 2016
For this article, I desire to clarify certain matters.
First, the Supreme Court’s Rules of Electronic Evidence has defined “Ephemeral electronic communication” as pertaining to “telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained” (Rule 2, Sec.1. k).
Rule 11, SEC. 2. Provided:
Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted.
A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section.
The preceding section is:
SECTION 1. Audio, video and similar evidence. – Audio, photographic and video evidence of events, acts or transactions shall be admissible provided is shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof.
If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 shall apply.
The pertinent portion of Rule 5 on “AUTHENTICATION OF ELECTRONIC DOCUMENTS” provided that:
SEC. 2. Manner of authentication. – Before any private electronic document offered as authentic is received in
evidence, its authenticity must be proved by any of the following means:
(a) by evidence that it had been digitally signed by the person purported to have signed the same;
(b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or
(c) by other evidence showing its integrity and reliability to the satisfaction of the judge.
Construing all the relevant provisions of the Rules of E-Evidence on ephemeral evidence, the rules mandate that these types of communication “be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted, provided they are authenticated.
Eversince I started my cyberlaw advocacies in 2007 when I came back from Australia, and started giving Mandatory Continuing Legal Education (MCLE) lectures on electronic evidence in 2008, I had always maintained that the classification and mode of authentication of “telephone conversations, text messages, chatroom sessions, streaming audio, streaming video,” and other akin electronic forms of communication as “ephemeral” simply because their “evidence … is not recorded or retained” under the Philippine Rules of E-Evidence are technologically and legally unsound. In my lectures, I set out the legal reasons and technological facts that disprove both the classification and the mode of authentication under these Rules.
Dr. Atty. Noel G. Ramiscal at IBP Dipolog, August 25, 2016
For the purpose of this article, the mere fact that the mobile phone, or its SD card, of a murdered victim contained the text messages and the recorded messages between the victim and the alleged assailant immediately disproves the characterization of these messages as “ephemeral” under the said rules. The records of these incriminating pieces of evidence are clearly captured in the mobile phone and in the SD card that the phone contains. Both the mobile phone and SD card are, by their very nature, recording devices.
Dr. Atty. Noel G. Ramiscal at his MCLE lecture fo ACLEx, October 7, 2016
In fact, the Supreme Court itself, in a slew of administrative decisions involving corrupt court officials which the court dismissed, relied on text messages that were saved in the mobile phones of the parties involved. The Supreme Court in these administrative cases did not examine if the messages were encrypted or had “digital signatures” or discussed any security procedure. The court merely relied on confirming the number of the mobile phones as the number of the parties involved, via the testimonies of the parties, and writing down the text messages retrieved in the mobile phones. This is much the procedure that is being followed now in the investigation of current Senator Leila De Lima, with respect to her mobile phone numbers. All of these pieces of evidence are contained in the mobile phone, and confirmed by other sources. So it is technologically wrong to state that text and telephone conversations that transpired between the victim and the purported assailant are “ephemeral communications” because their “evidence are not recorded or retained”. And I just desire to state that even if the mobile phone user had deleted a text message in the inbox, that message could still be retrieved from the service provider, and by a very good mobile phone forensic expert.
The over 120 strong IBP Zamboanga del Norte lawyers tht attended Dr. Ramiscal’s lecture, August 26, 2016
With respect to the mode of authentication that the Rules require, one cannot expect the alleged killer to own up to the recorded text messages and telephone conversations. The only other party to the incident is the murdered victim who cannot testify because of death. This is one of the absurd consequences that the current Rules foster with its insistence on “the testimony of a person who was a party to the same or has personal knowledge thereof”, which I point out every now and then in my MCLE lectures.
Some of the over 270 strong IBP Misamis Oriental, Cagayan de Oro lawyers, 9-7-2016
Now, in the absence of any competent witness, under the current Rules “other competent evidence may be admitted”. So the issue of the Anti-Wire Tapping Act kicks in. Is the mobile phone or the electronic device that contains the record of the text messages and telephone messages “competent evidence” despite the existence of the Anti-Wire Tapping Act?
I have expressed, time and time again, the opinion on several occasions where this type of query arose, that the evidence from these e-devices are “competent evidence”.
The Anti-Wire Tapping Law prohibits any party to any private communication who does not secure the consent of all the parties to such communication to “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” (Sec. 1). To obviate any criminal prosecution under this law, the party seeking to record the private communication must be a peace officer, or at least seek the assistance of a peace officer who must apply for a court order which will be issued upon written application and the examination under oath or affirmation of the applicant peace officer and the witnesses he may produce, by a Judge, upon showing to the Judge certain circumstances pertaining to certain crimes; “that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence.” (Sec. 3) The written court order shall also specify: “(1) the identity of the person or persons whose communications, conversations, discussions, or spoken words are to be overheard, intercepted, or recorded and, in the case of telegraphic or telephonic communications, the telegraph line or the telephone number involved and its location; (2) the identity of the peace officer authorized to overhear, intercept, or record the communications, conversations, discussions, or spoken words; (3) the offense or offenses committed or sought to be prevented; and (4) the period of the authorization.” (Sec. 3).
As is, the Anti-Wire Tapping Act that was approved and passed over fifty years ago (June 19, 1965) is an antiquated law. This law was clearly intended to prevent the unreasonable intrusions by the government into the legally protected private spheres of individual citizens.
The provisions of this law, if applied strictly in this day and age of the CCTVs, smartphones, Google Glass, fitbits, smartdust, would make all private legitimate recording activities without any court order applied for by a “peace officer” illegal in the Philippines. This law has outlived its usefulness and its purpose and any blind adherence to its provisions would cause untold injustice.
Dr. Atty. Noel G. Ramiscal with Judge Philip Aguinaldo and gorgeous lawyers of IBP Cagayan De Oro, 9-8-2016
The contemporary reality in our extremely wired and connected society is that electronic devices are meant to record information. They are set to capture all forms of e-data (i.e., video, audio, text and other bits of streamed information). This is the reason why police officers search and seize e-devices found on the persons of accused and copy or mirror the content of these e-devices to be used against the accused.
If these e-devices are confiscated from the accused, why should the e-devices found on the persons of murdered victims (which contain evidence of the crime perpetrated against them) be excluded simply because these victims, prior to their deaths did not secure the consent of their assailants, or did not get a peace officer to secure a court order, that will allow them to record the evidence of their death? Preposterous!
One of Cagayan De Oro’s finest lawyers fielding a question during the Q&A portion of Dr. Ramiscal’s lecture, 9-8-2016
In my September 8, 2016 MCLE lecture for the Integrated Bar of the Philippines, Misamis Oriental Chapter, held at the Grand Caprice Restaurant Hall, Cagayan De Oro, the former Congressman, now private practitioner Atty. Damasing raised the question if the text messages contained in the mobile phone of a deceased victim can be introduced as res gestae evidence. I told him yes.
Dr. Atty. Noel G. Ramiscal with former Congressman Damasing, MCLE Cagayan De Oro, September 8, 2016
Our current Rules of Court allow the admission of statements given by a deceased person under certain circumstances. If the text messages and recorded phone conversations by the deceased were made under the consciousness of an impending death, such may be received in any case wherein his/her death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death (Rule 130, 6, Sec 37). The statements made by the deceased prior to his/her death while the startling occurrence (the killing) is taking place or immediately prior thereto with respect to the circumstances of the killing, may be given in evidence as part of the res gestae. (Rule 130, 6, Sec 42). If the mobile phone or any piece of e-device was found on the person of the accused which contain evidence that point to his/her killer, that could be admitted under these two provisions. To do otherwise would deny the cause of Truth and Justice.
The Anti-Wire Tapping law is in the process of being revised or amended. I have not yet seen its revised draft. Definitely, this will have privacy and security implications. But one thing that I would like to see is for the amended draft to reflect the concerns I have raised here. It is also high time that the Philippine Supreme Court must revise the Rules of Electronic Evidence which it had left untouched since 2002!
Dr. Atty. Noel G. Ramiscal with Dean Jose Manuel Diokno of DLSU, IBP Dipolog, 8-25-2016
Dr. Atty. Noel G. Ramiscal with Atty. Gigi dela Cruz, IBP Dipolog, 8-25-2016
Moreover, as my last point, there is now a trend that I discuss in my MCLE lectures on Legal Ethics for Cyberlawyers, that the recording of certain incidents like the commission of a crime and even police brutality, without the consent of the police authorities has been seen by the court as part of the freedom of expression of the recorder, thus negating the any claims or defense based on Anti-Wire Tapping Laws.
I would like to thank all of my brothers and sisters in Law and in Life in all of the IBP Chapters I have lectured on these matters for this year and for the years past, as well as the other opportunities given to me by different providers, in reaching out to lawyers, legal professionals, students, educators, entrepreneurs, security and privacy professionals, to spread my own brand of Law and IT evangelism. Their faith and support for my cyberlaw advocacies have truly inspired me to become a better advocate and a better lawyer.
Dr. Atty. Noel G. Ramiscal with Atty. Arevalo and some of the gorgeous IBP lawyers and officers enjoying the marang fruit, September 8, 2016
One of the best things about doing lecture tours is meeting and getting to hear nuggets of legal wisdom from other MCLE lecturers and well known practitioners. Kudos to these brilliant lights in the legal profession: Dean Jose Manuel Diokno of DLSU Law School, IBP National Counsel, Atty. Rosalie de la Cruz, UP College of Law Foundation’s Atty. Armand Arevalo, Judge Philip Aguinaldo, Judge Jose Vibandor, former Judge, now private practitioner, Atty. Marjorie Uyengco-Nolasco, and my former UP Philosophy professor, Atty. Eddie Valdez.
Philippine Law Bytes: TheCyberLawyer Issues by Dr. Attorney Noel Guivani Ramiscal 