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

Supreme Court Building P. 0. BOX 12546 Austin, TX. 76711. 2546 5121475.2501 Telex 9101674-1367 TelecoDier 5121475-0266

1607 Main St., Suite 1400 Dallas, TX. 75201.4709 214/742-6944

4624 Alberta Ave.. Suite 160 El Paso. TX. 79905.2793 9151533.3464

1220 Dallas Ave., Suite 202 Houston, TX. 77002.6966 7131650-0666

606 Broadway, Suite 312 Lubbock, TX. 79401.3479 6061747-5236

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200 Main Plaza, Suite 400 San Antonio, TX. 76205.2797 512/225-4191

An Equal OpportunityI Affirmative Action Employer HonorableOscar H. Mauzy, Chairman OpinionNo.MW-463 SenateComittee on Jurisprudence Texas State Senate Re: Legality under new state State CapitolBuilding wiretap law of certain Austin, Texas 78711 products now offered for sale in Texas
Dear SenatorMauzy: The Sixty-seventh Legislature enacted House Bill No. 360, commonlyknown as the "wiretapbill." Acts 1981, 67th Leg., ch. 275, at 729. This bill amended section 16.02of the Penal Code and enacted article 18.20 of the Code of Criminal Procedure. You have asked several questions concerning the relationship between this bill and its federal counterpart,18U.S.C. sections 2510 et seq., the "Omnibus Crime Control and Safe StreetsAct of 1968" (hereinafterOmnibus Crime Control Act). You have also forwarded copies of advertisements for particular electronic devices currently for sale in Texas and asked whether these devices are "primarily designed or used for the nonconsensual interceptionof wire or oral coranunications."See Code - Crim. Proc. art. 18.20, §1(4).
Your questions can be more readily addressed if certain differences between the state and federal laws are kept in mind. Article 18.20, section l(4) of the Texas Code of Criminal Procedure definesan "electronic,mechanical, or other device"as:

a device or apparatus primarily designed or used for thenonconsensual interceptionofwire or oral communications. This term is defined in the federal law, 18 U.S.C. section 2510(5), as: Any device or apparatuswhich can be used to

intercepta wire or oral communicationother 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

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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 thannormal.
You ask whether these definitionsare the same, and, if they are not, how they differ. Section 16.02(d)of the Texas Penal Codeprovides 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. (Emphasisadded). Section 2512(l) of the federalact provides that:

Except as otherwise specificallyprovided in this chapter,anypersonwho 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 itprimarilyuseful for thepurpose of the surreptitious interceptionof wire or oral communications; (b) manufactures, assembles, possesses, or sellsany electronic,mechanical,or other device, knowing or having reason to know that the design of suchdevice renders it primarilyuseful for the purpose of the surreptitious interceptionof 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 .:

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(c) places in any newspaper, magazine, handbill, or other publication any advertisement of (0 any electronic, mechanical, or other deviceknowing or having reason toknow 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 interceptionof wire or oral communications, knowing or having reason to know that such advertisement will be sent through the mail or transportedin interstateor foreign commerce, shallbe finednot more than $10,000or 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 compatibleand the federal law ismore stringent, can the state law be less so? If they are compatible and the federal law is less stringent,can the state lawbe more so? Does the federal or the Texas law takeprecedence?
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 CriminalProcedure are preemptedby the federal **act.** We answer in thenegative. We also conclude that these state laws raise no question of constitutional privacy, contrarytowhat your questionsappear to assume. Besides defining "electronic,mechanical, and other device" and regulating various activities pertaining thereto, the 1968 federal Omnibus Crime ControlAct regulates the interceptionof oral and wire communications. Section 2516 of the .federalact lists the federal officers who may seek a judicial order authorizing electronic surveillance, and this section and others specify conditions which must be satisfiedbefore **such** an order may be granted. Section 2516

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

The principal prosecuting attorney of any State, Or the principal prosecuting attorney of any political subdivisionthereof, 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 ofwire or oral communicationsby investigativeor law enforcementofficershaving responsibilityfor 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. (Emphasisadded).
Case law establishes thatCongresshas "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 declaredthat:

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. [Citationsomitted]. Second, although a state *w adopt a statute with standardsmore 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 otherwords. a statemust, if it enacts

.. concurrent legislationdealingwith the interceptionof oral and wire communications,enact laws containing standardsat least as strict as those set forth in the federalact.

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The portions of the state and federalwiretap lawswith which you are concerneddo not, however, deal with the interceptionof oral and wire communications. Instead,they define "electronic,mechanical,or otherdevice"and regulatethemanufacture,assembly, etc., thereof.
The legislativehistory 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 Statesv. 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 electronicsurveillance. As regards "devices," therefore, states are free to legislate as they see fit. In other words, theymay -- as Texas has -- enact legislationwhich 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 interstateor 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 otherwiseplaced in interstate commerce. To the extent that the state laws apply to purely intrastateactivities, they are unaffectedby 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 (4thCir. 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 deviceswhich 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" containno statute analogous to section 2516(2)which seeks to define the parameterswithin which statesmay legislate,and there is no other evidence to indicate that Congress preempted this particular field. "preempted" where Challenged state action will not be regarded as 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 subjectmatter permitsno other conclusion,or that the Congress has unmistakably so ordained." Florida Lime and Avocado Growers, Inc.v. Paul, 373 U.S. 132. 142 (1963).

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In short, insofar as they define "electronic, mechanical, or other device" and regulate the manufacture, assembly, etc., thereof. we conclude that theTexaswiretap statutes towhich you referare not preempted by the federal act and may stand alongside that act. Offenses occurringwithin Texasmay, therefore,constitutea ViOlation of state law, federal law, or both. Inview of our analysis,we deem it unnecessary to explore the question of whether, and how, the state and federalacts otherwisediffer. With respect to the privacy issue, it is true that requirements in the 1968Omnibus Crime ControlAct which are designed toprotect 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 interceptionof oral and wire communications. There are no federalprivacy standardsapplicable to devices. Unlike statei&&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 questionof constitutionalprivacy.
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 telephoneand automaticallyrecordsboth sides of phone conversations. Others are a voice activated control switch and a wireless microphone. You ask whether these devices are prohibitedby 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 interceptionof 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 fromwhich that of the Texas statute is derived,however, has been construedby 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 attributesemphasizingthe surreptitiouscharacterof itsuse. United Statesv. Schweihs, 569 F.2d 965, 968 (5thCir. 1978) (citingS. 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 consistentwith the tenor of section 16.01(b) of the Texas Penal Code, which defines a

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"criminal instrument"as anything "speciallydesigned,made or adapted foruse in the commissionof 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 prohibitedby this Penal Code provision because they do not exhibit design characteristics marking an intent for surreptitioususe. A device is not prohibitedbecause it is small or may be adapted towiretapping or eavesdropping,but only if its design makes the likelihoodof covertuse apparent,as for example,where the device is disguised tomask its true function. Thus, we cannot conclude from the advertisements submitted to us that the advertised devices are prohibitedby 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 compatiblewith thoseprovisions.



# Azs

MARK WHITE Attorney General of Texas
JOHNW. FAINTER,JR. FirstAssistantAttorney General
RICHARD E. GRAY III ExecutiveAssistantAttorney General Preparedby Jon Bible AssistantAttorney General

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APPROVED: OPINION COMMITTEE
SusanL. Garrison,Chairman Jon Bible Joe Foy Rick Gilpin PatriciaHinojosa Jim Moellinger

p. 1618ATTACHMENT Advertisementsfor listeningand recordingdevices (information aboutmanufacturersis deleted).