                                           The Attorney            General of Texas
                                                               April 23, 1982
MARK WHITE
Attorney General


                                         Honorable Oscar H. Mauzy, Chairman     Opinion No.MW-463
Supreme      Court Building              Senate Comittee on Jurisprudence
P. 0. BOX 12546
                                         Texas State Senate                     Re: Legality under new state
Austin,    TX. 76711. 2546
5121475.2501
                                         State Capitol Building                 wiretap   law    of   certain
Telex    9101674-1367                    Austin, Texas   78711                  products now offered for sale
TelecoDier     5121475-0266                                                     in Texas

                                         Dear Senator Mauzy:
1607 Main St., Suite 1400
Dallas, TX. 75201.4709
214/742-6944                                  The Sixty-seventh Legislature enacted House Bill No. 360,
                                         commonly known as the "wiretap bill." Acts 1981, 67th Leg., ch. 275,
                                         at 729. This bill amended section 16.02 of the Penal Code and enacted
4624 Alberta       Ave.. Suite     160   article 18.20 of the Code of Criminal Procedure. You have asked
El Paso. TX.       79905.2793
9151533.3464
                                         several questions concerning the relationship between this bill and
                                         its federal counterpart, 18 U.S.C. sections 2510 et seq., the "Omnibus
                                         Crime Control and Safe Streets Act of 1968" (hereinafter Omnibus Crime
1220 Dallas Ave., Suite           202    Control Act). You have also forwarded copies of advertisements for
Houston,     TX. 77002.6966
                                         particular electronic devices currently for sale in Texas and asked
7131650-0666
                                         whether these devices are "primarily designed or used for the
                                         nonconsensual interception of wire or oral coranunications." -See Code
606 Broadway,         Suite 312          Crim. Proc. art. 18.20, §1(4).
Lubbock,     TX.    79401.3479
6061747-5236
                                              Your questions can be more readily addressed if certain
                                         differences between the state and federal laws are kept in mind.
4309 N. Tenth, Suite S                   Article 18.20, section l(4) of the Texas Code of Criminal Procedure
McAllen,     TX. 76501-1665              defines an "electronic, mechanical, or other device" as:
5121662.4547
                                                  a device or apparatus primarily designed or used
200 Main Plaza, Suite 400
                                                  for the nonconsensual interception of wire or oral
San Antonio,  TX. 76205.2797                      communications.
512/225-4191
                                         This term is defined in the federal law, 18 U.S.C. section 2510(5),
                                         as:
An Equal      OpportunityI
Affirmative     Action     Employer
                                                       Any device or apparatus which can be used to
                                                  intercept a wire or oral communication other than:

                                                       (a) any telephone or telegraph instrument,
                                                  equipment or facility, or any component thereof,
                                                  (i) furnished to the subscriber or user by a
                                                  communications COlUllCXl carrier in the ordinary




                                                                  p. 1611
                                                                        .:


Honorable Oscar H. Mauzy - Page 2   (MW-463)




         course of its business and being used by the
         subscriber or user in the ordinary course of its
         business; or (ii) being used by a communications
         common carrier in the ordinary course of its
         business,   or  by   an   investigative or    law
         enforcement officer in the ordinary course of his
         duties;

              (b) a hearing aid or similar device being
         used to correct subnormal hearing to not better
         than normal.

You ask whether these definitions are the same, and, if they are not,
how they differ.

     Section 16.02(d) of the Texas Penal Code provides that:

         Except as provided by Subsection (e) of this
         section, a person commits an offense if he
         knowingly    or     intentionally   manufactures,
         assembles, possesses, sells, sends, or carries an
         electronic, mechanical, or other device that is
         designed primarily for nonconsensual interception
         of wire or oral communications. (Emphasis added).

Section 2512(l) of the federal act provides that:

         Except as otherwise specifically provided in this
         chapter, any person who willfully:

              (a) sends through the mail, or sends or
         carries in interstate or foreign commerce, any
         electronic, mechanical, or other device, knowing
         or having reason to know that the design of such
         device renders it primarily useful for the purpose
         of the surreptitious interception of wire or oral
         communications;

              (b) manufactures, assembles, possesses, or
         sells any electronic, mechanical, or other device,
         knowing or having reason to know that the design
         of such device renders it primarily useful for the
         purpose of the surreptitious interception of wire
         or oral communications, and that such device or
         any component thereof has been or will be sent
         through the mail or transported in interstate or
         foreign commerce; or




                              p. 1612
Honorable Oscar H. Mauzy - Page 3    (MW-463)




                (c) places in any newspaper, magazine,
           handbill, or other publication any advertisement
           of

                     (0   any   electronic, mechanical, or
                other device knowing or having reason to know
                that the design of such device renders it
                primarily useful for the purpose of the
                surreptitious interception of wire or oral
                communications; or

                    (ii) any other electronic, mechanical,
               or other device, where such advertisement
               promotes the use of such device for the
               purpose of the surreptitious interception of
               wire or oral communications,

                knowing or having reason to know that such
           advertisement will be sent through the mail or
           transported in interstate or foreign commerce,

           shall be fined not more than $10,000 or imprisoned
           not more than five years, or both.       (Emphasis
           added).

You ask:

           Are the Texas law [section 16.02(d) of the Penal
           Code] and federal law [section 2512(l) of the
           federal act] compatible or are they in conflict?
           If they are compatible and the federal law is more
           stringent, can the state law be less so? If they
           are compatible and the federal law is less
           stringent, can the state law be more so? Does the
           federal or the Texas law take precedence?

     You appear to be asking whether section 16.02(d) of the Penal
Code and article 18.20, section l(4) of the Code of Criminal Procedure
are preempted by the federal act.  We answer in the negative. We also
conclude that these state laws raise no question of constitutional
privacy, contrary to what your questions appear to assume.

     Besides defining "electronic, mechanical, and other device" and
regulating various activities pertaining thereto, the 1968 federal
Omnibus Crime Control Act regulates the interception of oral and wire
communications. Section 2516 of the .federal act lists the federal
officers who may seek a judicial order authorizing electronic
surveillance, and this section and others specify conditions which
must be satisfied before such an order may be granted. Section 2516




                               p. 1613
Honorable Oscar H. Mauzy - Page 4   (MW-463)




of the federal act also permits certain state officers to apply to
state courts for a wiretapping order. Paragraph (2) provides that:

         The principal prosecuting attorney of any State,
         Or  the principal prosecuting attorney of any
         political subdivision thereof, if such attorney is
         authorized by a statute of that State to make
         aoolication to a State court judge of competent
         j;isdiction for an order autho&ing    or approving
         the interception of wire or oral communications,
         may apply to such judge for, and such judge may
         grant in conformity with section 2518 of this
         chapter and with the applicable State statute an
         order authorizing, or approving the interception
         of wire or oral communications by investigative or
         law enforcement officers having responsibility for
         the investigation of the offense as to which the
         application is made, when such interception may
         provide or has provided evidence of [certain
         specified crimes] designated in any applicable
         State statute authorizing such interception, or
         any conspiracy to commit any of the foregoing
         offenses. (Emphasis added).

     Case law establishes that Congress has "preempted the field" with
respect to the regulation of the interception of oral and wire
communications. As to the significance of section 2516(2), courts
have declared that:

          Several   principles   emerge    from   decisions
          interpreting 18 U.S.C. §2516(2) providing for
          state regulation of electronic surveillance.
          First, the federal act is not self-executing on
          the states; in order to obtain a wiretap warrant
          from a state court there must be a state wiretap
          statute in effect. [Citations omitted]. Second,
          although a state *w       adopt a statute with
          standards more stringent than the requirements of
          the federal law [citations omitted], 'a state may
          not   adopt a    statute with     standards more
          permissive....

State v. Farha, 544 P.Zd 341, 347-48 (Kan. 1975). _See State v.
Seigel, 285 A.2d 671 (Md. App. 1971); People v. Shapiro, 409 N.E.2d
897 (N.Y. Ct. ADD.
               ..  1980). In other words. a state must, if it enacts
concurrent legislation dealing with the interception of oral and wire
communications, enact laws containing standards at least as strict as
those set forth in the federal act.




                              p. 1614
Honorable Oscar H. Mauzy - Page 5   (MW-463)




     The portions of the state and federal wiretap laws with which you
are concerned do not, however, deal with the interception of oral and
wire communications. Instead, they define "electronic, mechanical, or
other device" and regulate the manufacture, assembly, etc., thereof.

     The legislative history of Title III indicates that Congress did
not intend that 18 U.S.C. section 2512 preempt state laws enacted to
address the same narrow subject matter. See S. Rep. No. 1097, 90th
Cong., 2d Sess., U.S. Code Cong. & Admin. News 1968, 2112, 2183, cited
in United States v. Upton, 502 F. Supp. 1193, 1196 (D.N.H. 1980).

     We conclude that Congress has not preempted the "device" field,
as it has the field of electronic surveillance. As regards "devices,"
therefore, states are free to legislate as they see fit. In other
words, they may -- as Texas has -- enact legislation which proscribes
at the state level conduct which congress has prohibited at the
federal level.

     The language of the federal act itself shows that it applies to
certain devices which are sent through the mail or transported in
interstate or foreign commerce. 18 U.S.C. §2512(1). The Texas laws,
on the other hand, apply to all devices designed primarily for
nonconsensual interception of w=    or oral communications found in
Texas, regardless of whether they will be mailed or otherwise placed
in interstate commerce. To the extent that the state laws apply to
purely intrastate activities, they are unaffected by the federal act.
Congress has chosen to regulate activities which have a nexus with
interstate commerce, regardless of whether it could constitutionally
have done otherwise. See United States v. Burroughs, 564 F.2d 1111
(4th Cir. 1977).

     Moreover, even to the extent that the Texas statutes regulate
activities which have a nexus with interstate commerce, viz., the
manufacture, assembly, etc., of devices which will be sent through the
mails or transported in interstate or foreign commerce, they are not
preempted by the federal act.      The federal provisions regulating
"devices" contain no statute analogous to section 2516(2) which seeks
to define the parameters within which states may legislate, and there
is no other evidence to indicate that Congress preempted this
particular field. Challenged state action will not be regarded as
"preempted" where it does not stand "as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress." Hines v. Davidowitz, 312 U.S. 52, 67 (1941). Federal
regulation of a field of commerce will not be deemed preemptive of
state regulatory power absent "persuasive reasons -- either that the
nature of the regulated subject matter permits no other conclusion, or
that the Congress has unmistakably so ordained." Florida Lime and
Avocado Growers, Inc. v. Paul, 373 U.S. 132. 142 (1963).




                              p. 1615
Honorable Oscar H. Mauzy - Page 6   (m-463)




     In short, insofar as they define "electronic, mechanical, or
other device" and regulate the manufacture, assembly, etc., thereof.
we conclude that the Texas wiretap statutes to which you refer are not
preempted by the federal act and may stand alongside that act.
Offenses occurring within Texas may, therefore, constitute a ViOlation
of state law, federal law, or both. In view of our analysis, we deem
it unnecessary to explore the question of whether, and how, the state
and federal acts otherwise differ.

     With respect to the privacy issue, it is true that requirements
in the 1968 Omnibus Crime Control Act which are designed to protect an
individual's right of privacy are the minimum standard and must be
construed strictly. see, e.g., United States v. Sotomayor, 592 F.2d
1219 (2d Cir. 1979); United States v. Marion, 535 F.2d 697 (2d Cir.
1976). "Privacy" is an issue, however, only in the area of electronic
surveillance, a,    the interception of oral and wire communications.
There are no federal privacy standards applicable to devices. Unlike
state i&&xlation in the "interception" field, therefore, legislation
in the "device" field, &.      section 16.02(d) of the Penal Code and
article 18.20, section l(4) of the Code of Criminal Procedure, raises
no question of constitutional privacy.

     As previously noted, you have submitted advertisements for
certain listening and recording devices currently sold in Texas.
Copies of these advertisements are attached. One such device is
attached to a telephone and automatically records both sides of phone
conversations. Others are a voice activated control switch and a
wireless microphone. You ask whether these devices are prohibited by
section 16.02(d) of the Penal Code.

     Section 16.02(d) of the Texas Penal Code prohibits, among other
things, the manufacture, sale, or sending of a "device that is
designed primarily for nonconsensual interception of wire or oral
communications." The phrase "designed primarily for nonconsensual
interception of wire or oral communications" is derived from language
used in the federal statute. 18 U.S.C. §2512. See Attorney General
Opinion H-770 (1976). Because the Texas statute isnewly enacted, its
language has not yet been judicially construed. The language of
section 2512 from which that of the Texas statute is derived, however,
has been construed by the federal courts to mean that, in order to be
prohibited under the "primarily useful"/"primary design" test, the
design of the device whose legality is questioned must possess
attributes emphasizing the surreptitious character of its use. United
States v. Schweihs, 569 F.2d 965, 968 (5th Cir. 1978) (citing S. Rep.
No. 1097, 90th Cong., 2d Sess.. U.S. Code Cong. & Admin. News,
2183-84, which notes as examples the martini olive transmitter and
fountain pen microphone). This construction is consistent with the
tenor of section 16.01(b) of the Texas Penal Code, which defines a




                              p. 1616
,   .


        Honorable Oscar H. Mauzy - Page 7   (MW-463)




        "criminal instrument" as anything "specially designed, made or adapted
        for use in the commission of an offense."

             The answer to your question thus depends upon facts relating to
        the design of the device. Certain facts about these items can be
        discerned from the advertisements. As previously stated, we have
        appended copies of these advertisements to this opinion in order to
        show clearly the facts upon which our answer is based. It is our
        opinion, based on an examination of the advertisements, that these
        devices are not prohibited by this Penal Code provision because they
        do not exhibit design characteristics marking an intent for
        surreptitious use. A device is not prohibited because it is small or
        may be adapted to wiretapping or eavesdropping, but only if its design
        makes the likelihood of covert use apparent, as for example, where the
        device is disguised to mask its true function.

             Thus, we cannot conclude from the advertisements submitted to us
        that the advertised devices are prohibited by section 16.02(d) of the
        Penal Code.

                                     SUMMARY

                    Section 16.02(d) of the Texas Penal Code and
                 article 18.20, section l(4) of the Texas Code of
                 Criminal Procedure, as enacted and amended by
                 House Bill No. 360, are not preempted by federal
                 statutes, 18 U.S.C. sections 2510(5) and 2512(l),
                 and are compatible with those provisions.

                                            Azs

                                                MARK      WHITE
                                                Attorney General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General

        RICHARD E. GRAY III
        Executive Assistant Attorney General

        Prepared by Jon Bible
        Assistant Attorney General




                                      p. 1617
Honorable Oscar 11.Mauzy - Page 8 @W-463-




APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Joe Foy
Rick Gilpin
Patricia Hinojosa
Jim Moellinger




                              p. 1618
                      ATTACHMENT

     Advertisements for listening and recording devices (information
about manufacturers is deleted).
