Eavesdropping not wiretapping

Is the use of telephone extension to overhear a private conversation prohibited by RA 4200 otherwise known as the Anti-Wire Tapping Act? More specifically in this case, could a person called over the telephone and his lawyer listening on an extension line be imprisoned for violation of said law simply because the extension was used to enable them to both listen to an alleged attempt at extortion? This is the issue resolved in this case of Mario and Manny both lawyers.

The case started when Mario was charged with Direct Assault before the Cebu Prosecutor’s Office for attacking Mr. Monte, a teacher. He allegedly assaulted Monte because the latter was maltreating his son, a student of Monte. In fact Monte also filed an earlier case of Maltreatment against Monte.

When Monte consulted his lawyer Atty. Pastor about the charge and counter charge, the latter was able to convince Monte just to withdraw the Direct Assault charge against Mario under certain terms and conditions. After Pastor informed Mario that he was able to convince Monte to drop the direct assault charge under certain conditions, Mario asked Pastor to call again as he would consult his lawyer. Thus Mario requested Manny to come to his office for briefing about the problem and for advice on the settlement.

When Pastor called again, Mario asked Manny to secretly listen to the telephone conversation through a telephone extension so as to personally hear the proposed conditions for settlement. Over the extension, Manny personally heard Pastor demand P8,000 in order to have his client Monte withdraw the direct assault case in the prosecutor’s office. He heard Pastor tell Mario that the said amount shall be paid as follows: P5,000 directly to himself instead of Monte for the persuading the latter to withdraw the direct assault charge; P2,000 also to him as his attorney’s fees, and P1,000 to the School’s Faculty Club.

Mario and Manny thought that this was robbery/extortion so they tipped the agents of the PNP on the place where the payment will be made. Thus when Pastor received the money at a designated restaurant, he was arrested and booked for extortion. In support of the extortion charge, the affidavit of Manny stating what he heard on the telephone extension was attached to the complaint. On the other hand, Pastor thought that using a telephone extension to listen to his private conversation with Mario without his consent was against RA 4200. So he charged Mario and Manny with violation of said law.

After trial on the merits, the lower court found both Mario and Manny guilty and sentenced them to one year imprisonment. This decision was affirmed by the Court of Appeals holding that: the communication between Mario and Pastor was private in nature and, therefore covered by RA 4200; that Manny overheard such communication without the knowledge and consent of Pastor; and that the extension telephone used by Manny is covered in the term "device" as provided in said law. Was the CA correct?

No. The law refers to a "tap" of a wire or cable or the use of a "device or arrangement for the purpose of secretly overhearing, intercepting or recording a communication. There must be either a physical interruption through a wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept or record spoken word.

An extension telephone cannot be placed in the same category as a dictaphone, dicta-graph, or the other devices enumerated in Section 1 of RA 4200 as the use thereof cannot be considered as "tapping" the wire or cable of a telephone line. The phrase "device or arrangement" in said section, although not exclusive to that enumerated therein, should be construed to comprehend instruments of the same or similar nature, that is, instruments the use of which would be tantamount to tapping the main line of a telephone. It refers to instruments whose installation or presence cannot be presumed by the party or parties being overheard because, by their very nature, they are not of common usage and their purpose is precisely for tapping, intercepting or recording a telephone conversation. The telephone extension in this case was not installed for that purpose. It just happened to be there for ordinary office use. An extension telephone is an instrument which is very common especially now when the extended unit does not have to be connected by a wire to the main telephone but can be moved from place to place within a radius of a kilometer or more. A person should safely presume that the party he is calling at the other end of the line probably has an extension line is not punished by the Anti-Wiretapping Law (Gaanan vs. Intermediate Appellate Court, 145 SCRA 112).

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