Seares: Under Anti-Terrorism Law, court cannot order wiretapping on journalists and their news sources

Pachico A. Seares

IT MUST be some comfort to media practitioners that the bills against terrorism -- Senate Bill #1083, approved last February 26 and House Bill #6875, approved last June 3 -- forbid the court to authorize wire-tapping on communications between journalists and their news sources.

The conditions for surveillance to ferret out or foil terrorists include:

[1] the filing of a petition for surveillance by the law enforcer or military agent with the Court of Appeals; and

[2} the express prohibition on the court on granting authority to spy on confidential business communications and those between lawyer and client, doctor and patient, and journalist and news source.

Scope of spying

Surveillance or spying under the terrorism bills, which will be consolidated and submitted to President Rodrigo Duterte for signature, includes "tracking down, following, or investigating individuals or organizations; or the wiretapping, listening, intercepting, screening, reading and recording of messages, conversations, discussions, spoken or written words, including computer and network surveillance, and other communications of individuals, charged with or suspected to be engaged in terrorism." In sum: everything, the works.

The Court of Appeals, upon application, will determine the need for the surveillance. Expectedly, it will rely on the word of the police, military or other intelligence personnel. And the petition will be ex-parte: the person to be spied on won't be told and heard, but of course.

Covered by wire-tap ban

The authorized spying will be for a period of 60 days, extendible by another 30 days. A procedure is laid down for the submission of results of the surveillance to the court, with safeguards on custody, secrecy of classified information, and potential unlawful use. The dossier is inadmissible as evidence but obviously it will be used for police or military action against suspected terrorists.

The surveillance will be an exception to the Anti-Wiretapping Law (Republic Act #4200). The administration says spying and other measures are crucial to the fight against terrorism. Opposers to the Anti-Terrorism Law of 2020, which would repeal the Human Security Act of 2007, say that it removes safeguards in the existing law and lessens the penalties for abuses by law enforcers and soldiers.

Journalists and their news sources will be exception to the exception, meaning the general ban on wire-tapping will benefit them. That may not completely spare them, though, from surveillance. Authorities most everywhere tend to spy anyone they see the need to spy in the name of national security. The express ban, however, is still some kind of refuge, the way the Sotto Law benefits journalists.

'Journalists' not defined

The Senate and House versions of the bill mention "journalists," which they don't define. Does the term include those who write in the internet such as bloggers and "citizen journalists" who don't belong to a media outlet? How about those who on Facebook or Twitter praise or rant or break "news" they've heard about? Are they covered too by the term "journalists."

Perhaps the implementing regulations that will be crafted once the bill becomes law will shed more light. In the absence of any clear rule, the CA may adopt the rule under the amendment to the Sotto Law (RA 53 of 1946). The amendment (RA 1158 of September 2019) expanded the list of journalists who cannot be compelled to reveal their news sources: from just print journalists to include broadcast and online journalists.

But who among those who write in the internet or work in broadcast are deemed journalists who are covered by the Anti-Terrorism Law exception? The court may have to decide in each case that comes up.

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2 US big-time editors out

New York Times editorial page editor James Bennet and Philadelphia Inquirer executive editor Stan Wischnowski lost their jobs over the weekend. Some call it collateral damage from the protests on racism that have raged in in the US for more than 15 days already.

Times journalists were angry over the running of an op-ed piece in NYT by a senator who called for the use of military force against the protesters. Bennet admitted he had not reviewed the controversial piece, which contained some false or misleading claims that were not contradicted in the same article.

Inquirer staffers were incensed over the "insensitive and tone-deaf" headline of an article that reported the damage of a cultural building in Philadelphia: "Buildings Matter Too," a play on the slogan "Black Lives Matter."

Were it not for the climate of anger across the land, the lapses could've been just judgment errors, which now and then an editor can commit in the heat of deadline.

That, with the push-back by the people the editors work with, brought the downfall of two otherwise competent and successful newsroom leaders.