Hawaii Surveillance Laws
| HRS: SURVEILLANCE LAWS IN HAWAII |
Hawaii has two types of laws applying to secret recording: an eavesdropping law and a privacy statute. One-party
consent is generally acceptable, but the privacy law includes provisions against the installation of surveillance
equipment. That situation has led to a strange split in the law: It would be legal for an investigator to wear a wire to
record her own conversation, but she cannot "plant" a bug or a video camera in the room to record the same
conversation.
Eavesdropping
Hawaii's eavesdropping statute makes it illegal to intentionally intercept, attempt to intercept or have someone else
intercept any wire, electronic or oral communication through the use of a device. It is also illegal to use, disclose or
attempt to use or disclose the contents (any information concerning the substance, purport or meaning) of a
communication if one knows or has reason to know that the communication was intercepted illegally.
The statute requires a reasonable expectation of privacy for oral communications. To be protected, an oral
communication must be uttered by a person exhibiting an expectation that the communication is not subject to
interception, under circumstances that justify that expectation.
Consent
It is legal for a person to intercept communication when the person is a party to the communication or when one of
the parties to the communication has given prior consent to the interception, unless the communication is
intercepted for the purpose of committing a criminal or tortious (wrongful) act. The consent of one of the parties is
not enough if a recording or amplifying device is installed in a private place; the consent of the people entitled to
privacy there must be obtained. (See the privacy statute, below.)
What is covered
The state statute specifically includes cellular telephone communications, but the radio portions of cordless
telephone communications are not protected.
It is legal to intercept a radio communication that is transmitted by any governmental, law enforcement, civil
defense, private land mobile, or public safety communications system, including police and fire department
systems, that is "readily accessible" to the general public. Readily accessible means, among other things, that the
communication is not scrambled or encrypted. Interception of amateur, citizens band and general mobile radio
services communications is also legal.
It is illegal in Hawaii to possess a device primarily useful for surreptitious interception of wire, oral or electronic
communications. Illegal devices can be seized and forfeited to the state.
Criminal and civil penalties
Violation of any of the above laws is a class C felony, punishable by up to five years in prison and a fine of $10,000.
Someone whose communication is illegally intercepted, disclosed or used can sue for injunctive relief or damages.
Damages may be assessed in the amount of either actual damages plus any profits made by the violator, or
statutory damages calculated at $100 for each day of violation or $10,000, whichever is higher. Punitive damages,
reasonable attorney's fees and court costs are also available.
Privacy
Hawaii's privacy statute outlaws the following:
Violation of the privacy statute is a misdemeanor
The differences in the eavesdropping and privacy statutes are made clear in two similar court cases involving
investigations of doctors prescribing drugs illegally.
In the first case, police officers rented two adjoining hotel rooms and installed video cameras. They then had an
informant summon the doctor to one of the rooms and ask for prescription drugs. The officers assumed the
surveillance was legal because the informant had consented. The state supreme court, however, ruled it was illegal
because it involved "installing" the equipment. The court found the hotel room to be a "private place" and said that
when the doctor entered it, he became as entitled to his privacy as the informant, so the officers should not have
recorded without his consent. Interestingly, the court also said that had the police had the informant wear a wire
rather than bug the room, the recording would have been legal.
In the second case, decided a year later, an undercover police officer wore a wire while posing as a patient in a
doctor's office. That method was approved by the court because the officer consented to the recording and because
no installation of a bug was involved. The court held that because the recording was consensual, it did not matter
that it happened in a place that might be considered private.
consent is generally acceptable, but the privacy law includes provisions against the installation of surveillance
equipment. That situation has led to a strange split in the law: It would be legal for an investigator to wear a wire to
record her own conversation, but she cannot "plant" a bug or a video camera in the room to record the same
conversation.
Eavesdropping
Hawaii's eavesdropping statute makes it illegal to intentionally intercept, attempt to intercept or have someone else
intercept any wire, electronic or oral communication through the use of a device. It is also illegal to use, disclose or
attempt to use or disclose the contents (any information concerning the substance, purport or meaning) of a
communication if one knows or has reason to know that the communication was intercepted illegally.
The statute requires a reasonable expectation of privacy for oral communications. To be protected, an oral
communication must be uttered by a person exhibiting an expectation that the communication is not subject to
interception, under circumstances that justify that expectation.
Consent
It is legal for a person to intercept communication when the person is a party to the communication or when one of
the parties to the communication has given prior consent to the interception, unless the communication is
intercepted for the purpose of committing a criminal or tortious (wrongful) act. The consent of one of the parties is
not enough if a recording or amplifying device is installed in a private place; the consent of the people entitled to
privacy there must be obtained. (See the privacy statute, below.)
What is covered
The state statute specifically includes cellular telephone communications, but the radio portions of cordless
telephone communications are not protected.
It is legal to intercept a radio communication that is transmitted by any governmental, law enforcement, civil
defense, private land mobile, or public safety communications system, including police and fire department
systems, that is "readily accessible" to the general public. Readily accessible means, among other things, that the
communication is not scrambled or encrypted. Interception of amateur, citizens band and general mobile radio
services communications is also legal.
It is illegal in Hawaii to possess a device primarily useful for surreptitious interception of wire, oral or electronic
communications. Illegal devices can be seized and forfeited to the state.
Criminal and civil penalties
Violation of any of the above laws is a class C felony, punishable by up to five years in prison and a fine of $10,000.
Someone whose communication is illegally intercepted, disclosed or used can sue for injunctive relief or damages.
Damages may be assessed in the amount of either actual damages plus any profits made by the violator, or
statutory damages calculated at $100 for each day of violation or $10,000, whichever is higher. Punitive damages,
reasonable attorney's fees and court costs are also available.
Privacy
Hawaii's privacy statute outlaws the following:
- trespassing on property for the purpose of eavesdropping or conducting surveillance in a private place;
- installing or using equipment in a private place for observing, photographing, recording, amplifying or
broadcasting sounds or events "without the consent of the person or persons entitled to privacy therein"; - installing or using--without consent--the same type of equipment outside a private place to hear or record
sounds from inside that would not normally be audible outside; - intercepting a message transmitted by telephone or other means of private communication, except that
listening on a telephone party line or an extension is not illegal; and - divulging the contents of any illegally obtained private communication if the divulger knows or has reason to
know that it was unlawfully intercepted.
Violation of the privacy statute is a misdemeanor
The differences in the eavesdropping and privacy statutes are made clear in two similar court cases involving
investigations of doctors prescribing drugs illegally.
In the first case, police officers rented two adjoining hotel rooms and installed video cameras. They then had an
informant summon the doctor to one of the rooms and ask for prescription drugs. The officers assumed the
surveillance was legal because the informant had consented. The state supreme court, however, ruled it was illegal
because it involved "installing" the equipment. The court found the hotel room to be a "private place" and said that
when the doctor entered it, he became as entitled to his privacy as the informant, so the officers should not have
recorded without his consent. Interestingly, the court also said that had the police had the informant wear a wire
rather than bug the room, the recording would have been legal.
In the second case, decided a year later, an undercover police officer wore a wire while posing as a patient in a
doctor's office. That method was approved by the court because the officer consented to the recording and because
no installation of a bug was involved. The court held that because the recording was consensual, it did not matter
that it happened in a place that might be considered private.
| Sources Hawaii Revised Statutes Sections 7111-111, 803-41 to 803-43, 803-47.5 to 803-48 (1997); State v. Lo, 675 P.2d 754 (Haw. 1983); State v. Lee, 686 P.2d 816 (Haw. 1984). |
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