Most Texas PIs seem to consider the use of audio enhancement technology to be wiretapping. But they do not seem to consider video or photography enhancement technology to be the same.

A Texas PI will use an optical zoom on a camera or video recorder, and consider it to be legal. The same for applying photo filtering (glare reducers, specific color filters).

Most will not consider the use audio filters, like electronic processing to remove extra sounds, amplification of the sounds, boom microphones, parabolic microphones or receivers, etc. to be legal. They claim they run afoul of wiretap laws.

Assuming the subject is in a public place without reasonable expectations of privacy, wouldn't the use of either audio or video enhancement technology be the same?

Audio is waves of air and light/video/photo are electromagnetic waves, so the physical manifestation of the information is the same physically.

Why is the difference legally?

1 Answer 1


The difference in their treatment is because of the asymmetry in the law. There are "wiretapping" laws pertaining to interception of voice communication, which do not include photographic recording. It is generally illegal to "intercept" an oral, wire or electronic communication (direct conversation, literal wire tap, or listening in on wireless speech): there is an exception that sound can be "intercepted" by a hearing aid or similar device to correct a person's less-than-normal hearing. Using a microphone or any other electronic device is thus "wiretapping". There is no law against taking a photo in public, even using a telephoto lens (however, trespassing to take a photo is illegal).

It is true that when a person has no reasonable expectation of privacy, voice recording does not require consent of either party (in Texas). But simply "being in public" does not mean that there is no expectation of privacy – it depends on whether a reasonable person would know that they can easily be heard. In that context, there is still a reasonable expectation of privacy if you're 30 feet from the nearest person.

It is hard to say exactly why the law is the way it is. I presume it is partially based on differences in "reasonable expectations of privacy" for sound versus light (sound dies out quickly, light does not). Wiretapping laws are, in the first place (Omnibus Crime Control Act of 1968), a reaction to Supreme Court decisions that limited wiretapping on 4th Amendment grounds in Berger v. New York, 388 U.S. 41 and Katz v. United States, 389 U.S. 347. Since the court did not say that the government taking a picture (without trespassing) is unconstitutional, the US government and states did not construct laws that prohibited that activity.

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    The historical distinction more likely relates to the fact that voice has been carried over wires for more than 100 years and video for about 40. For most of that time the recording technologies have been widely different- we think of them as two sides of the same coin but that is very different to how they were thought of throughout the 20th century when these laws date from.
    – Dale M
    Aug 1, 2017 at 3:14

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