§711-1111  Violation of privacy in the
second degree.  (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;



(c) Trespasses on property for the sexual
gratification of the actor;



(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, including 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; but this
paragraph does not apply to:



(i)  Overhearing of messages through a
regularly installed instrument on a telephone party line or an extension; or



(ii)  Interception by the telephone company,
electronic mail account provider, or telephone or electronic mail subscriber
incident to enforcement of regulations limiting use of the facilities or
incident to other operation and use;



(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 or if the accused learned of the message or
photographic image in the course of employment with an agency engaged in
transmitting it; or



(i) Knowingly possesses materials created under
circumstances prohibited in section 711-1110.9.



(2)  This section shall not apply to any
dissemination, distribution, or transfer of images subject to this section by
an electronic communication service provider or remote storage service in the
ordinary course of its business.  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 service"
means any service that provides to users thereof the ability to send or receive
wire or electronic communications.



"Electronic communication service
provider" means any person engaged in the offering or sale of electronic
communication services to the public.



"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 e-mail, web hosting, multimedia messaging
services, and remote storage services offered by an electronic communication
service provider.



"Remote storage service" means the
provision to the public of computer storage or processing services by means of
an electronic communication system.



(3)  For the purposes of this section:



"Intimate areas" means any portion of
a person's underwear, pubic area, anus, buttocks, vulva, genitals, or female
breast.



"Intimate areas underneath clothing"
does not include intimate areas visible through a person's clothing or intimate
areas exposed in public.



"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.  In addition to any penalties the court may impose, the court
may order the destruction of any recording made in violation of this section.
[L 1972, c 9, pt of §1; gen ch 1993; am L 1999, c 278, §2; am L 2003, c 48, §4;
am L 2004, c 83, §3; am L 2006, c 230, §48]



 



Note



 



  In subsection (2), definitions rearranged.



 



Cross References



 



  Electronic eavesdropping, see chapter 803, part IV.



 



COMMENTARY ON §711-1111



 



  This section is provided on the theory that in an era of
increasing use of electronic eavesdropping devices, criminal sanctions should
be used to protect an individual's right of privacy.  Wiretapping is contrary
to federal law, but it is right that state law should also be on record against
it.  Therefore, in addition to simple trespassory, nonmechanical eavesdropping,
covered in subsection (1)(a), §711-1111 forbids any sort of electronic or mechanical
eavesdropping or surveillance whether done through some physical connection
with the place under surveillance or not.  Thus subsection (1)(b) forbids
installation or use of eavesdropping equipment in a "private place"
(defined in §711-1100) whereas subsection (1)(c) forbids the use anywhere of
equipment designed to receive sounds originating in a private place and
normally inaudible or incomprehensible outside.  Physical contact with the
private place is not necessary.  Subsection (1)(d) generally forbids
wiretapping, but does not apply to listening in on a party line or extension
phone (these are risks known to all telephone users and are not of the
magnitude of a wiretap), nor does it apply to interception by the telephone
company or a subscriber seeking to ascertain that the telephone is not being
put to improper use.  Thus a company with a telephone switchboard would not be
guilty of a crime if it ordered an employee to monitor calls in order to assure
that instructions limiting use of the telephone to business calls were being
followed.  Subsection (1)(e) forbids anyone to divulge the existence or
contents of a telephone call, telegram, or letter, which he knows was
unlawfully intercepted, or which he learned of in the course of his employment
by a transmitting agency, without the consent of the sender or the receiver. 
Since subsection (1)(d) has the exceptions noted, subsection (1)(e) would not
cover the party line eavesdropper who reveals what he has overheard.



  Previous Hawaii law in this area was limited to violations of
privacy resulting from interception or recordation of telephone and wire
communications.[1]  The Code, therefore, is broader in its overall scope than
prior law.  However, as applied to telephone and wire interceptions or recordations,
the Code would limit criminal liability to situations where the conduct was
engaged in without the consent of both parties (sender and receiver) to the
conversation or communication.  If one of the parties to the communication
authorizes its interception or recordation (e.g., in an attempt to trace
obscene or extortionary telephone calls), criminal sanctions ought not to
result.



 



SUPPLEMENTAL COMMENTARY ON §711-1111



 



  Act 278, Session Laws 1999, amended this section, more
specifically, by making the offense of violation of privacy in the second
degree a misdemeanor.  The offense does not include the installation of any
device for, among other things, videotaping or filming another person in a
state of undress or sexual activity, which is covered under §711-1110.9.  The
knowing possession of materials created under circumstances prohibited in
§711-1110.9 is included as an offense under this section.



  Act 48, Session Laws 2003, amended this section to update the
crime of violation of privacy in the second degree to punish "video
voyeurism" in public places.  The legislature found that through
technological advancements, recording and broadcasting devices are easily
concealed.  Incidents of "video voyeurism" in public places have occurred
but are not chargeable under existing laws. Changing the offense of violation
of privacy would address the growing concern for the offensive practice of
"upskirt photography".  Senate Standing Committee Report No. 637,
House Standing Committee Report No. 1316.



  Act 83, Session Laws 2004, amended this section to include
photographic images among the types of private communications that may not be
intercepted or divulged without the consent of the sender or receiver, except
when the images are disseminated, distributed, or transferred by electronic
communication service providers or remote storage services in the ordinary
course of business.  Act 83 also defined the terms "electronic
communication", "electronic communication service",
"electronic communication service provider", "electronic
communication system", and "remote storage service".  Act 83
made statutory amendments to the existing privacy law in order to prohibit the
inappropriate use of new digital technologies, such as cellular phones, that
are capable of taking digital photographs and transmitting those images.  House
Standing Committee Report No. 826-04, Conference Committee Report No. 43-04.



  Act 230, Session Laws 2006, amended subsection (1) to add
peering or peeping into windows and trespassing on property for sexual
gratification to the offense of violation of privacy in the second degree. 
House Standing Committee Report No. 665-06.



 



Law Journals and Reviews



 



  Don't Smile, Your Image Has Just Been Recorded on a
Camera-Phone:  The Need For Privacy in the Public Sphere.  27 UH L. Rev. 377.



 



__________



§711-1111 Commentary:



 



1.  H.R.S. §§275-3 and 275-5.