Comprehensive Overview (state-by-state) of the Legal Impact of wiretapping:
Hawaii has an updated communication interception statute, augmented by an extensive privacy statute.
Hawaii is an “one party consent” state with regard to interception of communication, meaning that a person can legally record or otherwise intercept a wire, oral or electronic communication if he or she is a party to the communication, or has received prior consent from one of the parties engaged in the communication.
Regarding surveillance of other persons, Hawaii has an extensive violation of privacy section, that regulates a broad spectrum of instances, from observing or recording other persons under circumstances that justify expectation of privacy or distributing private recordings of other persons without their consent, to trespassing or peeping into windows.
Impact of law
In Hawaii, an individual can legally record conversations where either he is a party to the conversation or at least one of the engaged parties has consented to the recording. As a common way of illegal eavesdropping, the law specifically addresses installing and using mobile tracking devices. Such applications can only be used by the owner or with the consent of the owner of the target device. The privacy statute also specifically references protected media such as email, web hosting, multimedia messaging services, making Hawaii one of the most specific states with regard to privacy laws.
References to Physical TSCM
Hawaii eavesdropping statute references any electronic, mechanical, or other device capable of intercepting any wire, oral, or electronic communication, when it transmits a signal through cable or radio connection. Pen registers and trap and trace devices are also mentioned as illegal if used without a court order.
The privacy law also mentions “any means or device for observing, recording, amplifying, or broadcasting”, which can be interpreted to include all covert surveillance devices.
References to Cyber TSCM
The law specifically mentions the unlawful installation of mobile tracking devices without consent from the owner of the targeted device. Further, the law defines “electronic communication system” as “including email, web hosting, multimedia messaging services, and remote storage services offered by an electronic communication service provider”. We can then assert that intrusions upon these media by cyber means of attack are also subject of the law.
Violations of Hawaii eavesdropping statute are class C felonies, punishable by up to five years imprisonment and fines of up to $10,000.
Violation of privacy in the first degree is also a class C felony and the same punishment applies. Violation of privacy in the second degree is a misdemeanor, punishable by fines up to $2,000 and up to one year of imprisonment.
Anyone whose communications have been intercepted in violation to the state’s statute, is entitled to a civil action against the perpetrator and to recover damages comprised of the greater of the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, or statutory damages of the greater of $100 a day for each day of violation or $10,000 and also attorney’s fees and other litigation costs.
Haw. Rev. Stat. 803-42
(a) Except as otherwise specifically provided in this part, any person who:
(1) Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
(2) 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 wire, oral, or electronic communication when:
(A) Such a device is affixed to, or otherwise transmits a signal through, a wire, cable, or other similar connection used in wire communication; or
(B) Such a device transmits communications by radio, or interferes with the transmission of such communication;
(3) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this part;
(4) Intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this part;
(7) Intentionally installs or uses a pen register or a trap and trace device without first obtaining a court order; or
(8) Intentionally installs or uses a mobile tracking device without first obtaining a search warrant or other order authorizing the installation and use of such device, unless the device is installed by or with consent of the owner of the property on which the device is installed;
shall be guilty of a class C felony.
(3) (A) It shall not be unlawful under this part for a person not acting under color of law to intercept a wire, oral, or electronic 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 […]
Haw. Rev. Stat. 711-1110.9 – Violation of privacy in the first degree.
(1) A person commits the offense of violation of privacy in the first degree if, except in the execution of a public duty or as authorized by law:
(a) The person intentionally or knowingly installs or uses, or both, in any private place, without consent of the person or persons entitled to privacy therein, any device for observing, recording, amplifying, or broadcasting another person in a stage of undress or sexual activity in that place; or
(b) The person knowingly discloses an image or video of another identifiable person either in the nude, as defined in section 712-1210, or engaging in sexual conduct, […]
(2) Violation of privacy in the first degree is a class C felony. In addition to any penalties the court may impose, the court may order the destruction of any recording made in violation of this section.
Haw. Rev. Stat. 711-1111
(1) A person commits the offense of violation of privacy in the second degree if, except in the execution of a public duty or as authorized by law, the person intentionally:
(a) Trespasses on property for the purpose of subjecting anyone to eavesdropping or other surveillance in a private place;
(b) Peers or peeps into a window or other opening of a dwelling or other structure adapted for sojourn or overnight accommodations for the purpose of spying on the occupant thereof or invading the privacy of another person with a lewd or unlawful purpose, under circumstances in which a reasonable person in the dwelling or other structure would not expect to be observed;
(d) Installs or uses, or both, in any private place, without consent of the person or persons entitled to privacy therein, any means or device for observing, recording, amplifying, or broadcasting sounds or events in that place other than another person in a stage of undress or sexual activity;
(e) Installs or uses outside a private place any device for hearing, recording, amplifying, or broadcasting sounds originating in that place which would not ordinarily be audible or comprehensible outside, without the consent of the person or persons entitled to privacy therein;
(f) Covertly records or broadcasts an image of another person’s intimate area underneath clothing, by use of any device, and that image is taken while that person is in a public place and without that person’s consent;
(g) Intercepts, without the consent of the sender or receiver, a message or photographic image by telephone, telegraph, letter, electronic transmission, or other means of communicating privately;
(h) Divulges, without the consent of the sender or the receiver, the existence or contents of any message or photographic image by telephone, telegraph, letter, electronic transmission, or other means of communicating privately, if the accused knows that the message or photographic image was unlawfully intercepted […]
For the purpose of this subsection:
“Electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system.
“Electronic communication system” means any wire, radio, electromagnetic, photo-optical, or photoelectronic facilities for the transmission of wire or electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications, including email, web hosting, multimedia messaging services, and remote storage services offered by an electronic communication service provider.
(3) For the purposes of this section:
“Public place” means an area generally open to the public, regardless of whether it is privately owned, and includes but is not limited to streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, buses, tunnels, buildings, stores, and restaurants.
(4) Violation of privacy in the second degree is a misdemeanor.
Haw. Rev. Stat. 803-48 – Recovery of civil damages authorized.
Any person whose wire, oral, or electronic communication is accessed, intercepted, disclosed, or used in violation of this part shall (1) have a civil cause of action against any person who accesses, intercepts, discloses, or uses, or procures any other person to access, intercept, disclose, or use the communications, and (2) be entitled to recover from any such person:
(A) The greater of (i) the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, or (ii) statutory damages of the greater of $100 a day for each day of violation or $10,000;
(B) Punitive damages, where appropriate; and
(C) A reasonable attorney’s fee and other litigation costs reasonably incurred.