Comprehensive Overview (state-by-state) of the Legal Impact of wiretapping:

Texas

Current status

Sec. 6.02. of the Texas Penal Code addresses unlawful interception, use, or disclosure of wire, oral, or electronic communications, adopting similar provisions and terminology as the federal law. The state law also addresses some additional instances such as effecting a covert entry for the purpose of intercepting communications or manufacturing eavesdropping devices. A subsequent section of the Penal Code addresses the installation of tracking devices on motor vehicles.

The state also addresses improper photography or visual recording, but only under limited circumstances: either with the purpose of sexual gratification, or with intent to invade the privacy of another person, but only in such places as bathrooms and private dressing rooms, with emphasis on bodily exposure.

Impact of law

Texas is a “one party consent” state, where anyone can lawfully record a private conversation to which he or she is a party without the consent and without notifying the other parties. One can also intercept a conversation for which he or she has received the consent of at least one party engaged in the conversation. The same is valid for wire and electronic communications, defined as “any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature”. One can thus lawfully record any email, text messages, chat content and other online interactions in which he or she is a participant, or for which he or she has received the consent of a sender or receiver.

One subsection prohibits the manufacturing, selling and advertising of eavesdropping devices. It is also unlawful to install a tracking device on a car without the consent of the owner or lessee of the vehicle. The law specifically mentions licensed private investigators, who can legally install tracking devices on cars with the consent of the owner.

References to Physical TSCM

Texas law, as based on the federal provisions, prohibits the illegal “interception of any wire, electronic, or oral communication”. Further definitions of terms lead to a very broad perspective on the law.

First, the law defines the term “intercept” as the acquisition of the contents of communication “through the use of any electronic, mechanical, or other device”. Further, “electronic, mechanical, or other device” is defined as “any device or apparatus which can be used to intercept” a wire, electronic, or oral communication. We can thus assert that the law addresses illegal interception through the use of any device which can be used to intercept any wire, electronic, or oral communication. This is an all-inclusive perspective, that can literally address any means of wiretapping and available devices. The law also describes illegal devices as “designed primarily for nonconsensual interception of wire, electronic, or oral communications”.

References to Cyber TSCM

As stated earlier, In the case of intercepting electronic communication, the law also mentions the use of any “electronic, mechanical, or other device” as means for illegal acquisition of content. From further definitions, we assert that such devices are considered to be “any device or apparatus which can be used to intercept” “any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature” and that this description covers all cyber-surveillance tools.

Criminal implications

A violation under Texas interception law is a felony of the second degree unless the offense is committed under Subsection (d) or (g), in which event the offense is a state jail felony. Unlawful installation of tracking device is a Class A misdemeanor. An offense under the visual recording law is a state jail felony.

Civil implications

Anyone whose wire, oral or electronic communication has been intercepted, used or disclosed in violation of the law can bring a civil suit to the perpetrator and are entitled to recover statutory damages of $10,000 for each occurrence, actual damages, punitive damages, attorney’s fees and court costs.

Code excerpts

Tex. Penal Code Ann. Sec. 16.02[1]. Unlawful interception, use, or disclosure of wire, oral, or electronic communications.

(b) A person commits an offense if the person:

(1) intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication;

(2) intentionally discloses or endeavors to disclose to another person the contents of a wire, oral, or electronic communication if the person knows or has reason to know the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

(3) intentionally uses or endeavors to use the contents of a wire, oral, or electronic communication if the person knows or is reckless about whether the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

(4) knowingly or intentionally effects a covert entry for the purpose of intercepting wire, oral, or electronic communications without court order or authorization; or

(5) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when the device:

(A) is affixed to, or otherwise transmits a signal through a wire, cable, or other connection used in wire communications; or

(B) transmits communications by radio or interferes with the transmission of communications by radio.

(c) It is an affirmative defense to prosecution under Subsection (b) that:

(4) a person not acting under color of law intercepts a wire, oral, or electronic communication, if (A) the person is a party to the communication; or

(B) one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing an unlawful act;

(d) A person commits an offense if the person:

(1) intentionally manufactures, assembles, possesses, or sells an electronic, mechanical, or other device knowing or having reason to know that the device is designed primarily for nonconsensual interception of wire, electronic, or oral communications […]

(2) places in a newspaper, magazine, handbill, or other publication an advertisement of an electronic, mechanical, or other device:

(A) knowing or having reason to know that the device is designed primarily for nonconsensual interception of wire, electronic, or oral communications;

(B) promoting the use of the device for the purpose of nonconsensual interception of wire, electronic, or oral communications […]

(f) An offense under this section is a felony of the second degree unless the offense is committed under Subsection (d) or (g), in which event the offense is a state jail felony.

Tex. Penal Code Ann. Sec. Sec. 16.06. Unlawful installation of tracking device.

(a) In this section:

(1) “Electronic or mechanical tracking device” means a device capable of emitting an electronic frequency or other signal that may be used by a person to identify, monitor, or record the location of another person or object.

(b) A person commits an offense if the person knowingly installs an electronic or mechanical tracking device on a motor vehicle owned or leased by another person.

(c) An offense under this section is a Class A misdemeanor.

(d) It is an affirmative defense to prosecution under this section that the person:

(1) obtained the effective consent of the owner or lessee of the motor vehicle before the electronic or mechanical tracking device was installed;

(3) was a private investigator licensed under Chapter 1702, Occupations Code, who installed the device:

(A) with written consent:

(i) to install the device given by the owner or lessee of the motor vehicle; and

(ii) to enter private residential property, if that entry was necessary to install the device, given by the owner or lessee of the property;

Tex. Code Crim. Proc. Ann. Art. 18.20[2]. Detection, interception and use of wire, oral, or electronic communications.

Sec. 1. Definitions.

In this article:

(1) “Wire communication” means an aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception […]

(2) “Oral communication” means an oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation. The term does not include an electronic communication.

(3) “Intercept” means the aural or other acquisition of the contents of a wire, oral, or electronic communication through the use of an electronic, mechanical, or other device.

(4) “Electronic, mechanical, or other device” means a device that may be used for the non-consensual interception of wire, oral, or electronic communications […]

(15) “Electronic communication” means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term does not include:

(A) a wire or oral communication;

(B) a communication made through a tone-only paging device; or

(C) a communication from a tracking device.

Sec. 2. Prohibition of use as evidence of intercepted communications

(a) The contents of an intercepted communication and evidence derived from an intercepted communication may be received in evidence in any trial […] of this state unless:

(1) the communication was intercepted in violation of this article, Section 16.02, Penal Code, or federal law

Tex. Civ. Prac. & Rem. Code Ann. Sec. 123.002[3]. Cause of action.

(a) A party to a communication may sue a person who:

(1) intercepts, attempts to intercept, or employs or obtains another to intercept or attempt to intercept the communication;

(2) uses or divulges information that he knows or reasonably should know was obtained by interception of the communication; or

(3) as a landlord, building operator, or communication common carrier, either personally or through an agent or employee, aids or knowingly permits interception or attempted interception of the communication.

Tex. Civ. Prac. & Rem. Code Ann. Sec. 123.004. Damages.

A person who establishes a cause of action under this chapter is entitled to:

(1) an injunction prohibiting a further interception, attempted interception, or divulgence or use of information obtained by an interception;

(2) statutory damages of $10,000 for each occurrence;

(3) all actual damages in excess of $10,000;

(4) punitive damages in an amount determined by the court or jury; and

(5) reasonable attorney’s fees and costs.

Tex. Penal Code Ann. 21.15[4]. Improper photography or visual recording

(b) A person commits an offense if the person:

(1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room:

(A) without the other person’s consent; and

(B) with intent to arouse or gratify the sexual desire of any person;

(2) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is a bathroom or private dressing room:

(A) without the other person’s consent; and

(B) with intent to:

(i) invade the privacy of the other person; or

(ii) arouse or gratify the sexual desire of any person; or

(3) knowing the character and content of the photograph, recording, broadcast, or transmission, promotes a photograph, recording, broadcast, or transmission described by Subdivision (1) or (2).

(c) An offense under this section is a state jail felony.

(e) For purposes of Subsection (b)(2), a sign or signs posted indicating that the person is being photographed or that a visual image of the person is being recorded, broadcast, or transmitted is not sufficient to establish the person’s consent under that subdivision.

 

 

[1] Source: http://www.statutes.legis.state.tx.us/SOTWDocs/PE/htm/PE.16.htm

[2] Source: http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.18.htm

[3] Source: http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.123.htm

[4] Source: http://www.statutes.legis.state.tx.us/SOTWDocs/PE/htm/PE.21.htm