PART IV. 
ELECTRONIC EAVESDROPPING



 



Note



 



  Heading reenacted by L 2006, c 200, pt of §4.



 



Law Journals and Reviews



 



  Hawaii's New Wiretap Law.  14 HBJ No. 3, Fall 1978, pg. 83.



  The Lum Court and the First Amendment.  14 UH L. Rev. 395.



 



Case Notes



 



  Warrantless recordation by party to conversation did not
violate this part.  64 H. 659, 649 P.2d 346.



  Provisions of this part and article I, §7 of state
constitution not relevant to question of legality of electronic eavesdropping
activities conducted in California.  83 H. 187, 925 P.2d 357.



 



§803-41  Definitions.  As used in this
part, unless the context clearly requires otherwise:



"Aggrieved person" means a person who
was party to any intercepted wire, oral, or electronic communication or a
person against whom the interception was directed.



"Aural transfer" means a transfer
containing the human voice at any point between and including the point of
origin and the point of reception.



"Bait vehicle" means any vehicle used
by law enforcement to further an investigation of and deter unauthorized entry
into a motor vehicle or unauthorized control of propelled vehicles.



"Communication common carrier" means
any person engaged as a common carrier for hire in interstate or foreign
communication by wire or radio or in intrastate, interstate, or foreign radio
transmission of energy, except where reference is made to communication common
carriers not subject to this part; provided that a person engaged in radio
broadcasting, to the extent the person is so engaged, shall not be deemed a
communication common carrier.



"Contents" when used with respect to
any wire, oral, or electronic communication, includes any information
concerning the substance, purport, or meaning of that communication.



"Designated judge" means a circuit
court judge designated by the chief justice of the Hawaii supreme court to
issue orders under this part.



"Electronic communication" means any
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 that affects intrastate, interstate,
or foreign commerce.  The term "electronic communication" includes,
but is not limited to, "display pagers" which can display [a] visual
message as part of the paging process, but does not include:



(1)  Any wire or oral communication;



(2)  Any communication made through a tone-only paging
device;



(3)  Any communication from a tracking device; or



(4)  Electronic funds transfer information stored by [a]
financial institution in a communications system used for the electronic
storage and transfer of funds.



"Electronic communication service"
means any service that provides to users thereof the ability to send or receive
wire or electronic communications.



"Electronic
communication system" means any wire, radio, electromagnetic,
photo-optical, or photoelectronic facilities for the transmission of electronic
communications, and any computer facilities or related electronic equipment for
the electronic storage of these communications.



"Electronic, mechanical, or other
device" means any device or apparatus that can be used to intercept a
wire, oral, or electronic communication other than:



(1)  Any telephone or telegraph instrument, equipment
or facility, or any component thereof, (A) furnished to the subscriber or user
by a provider of wire or electronic communication service in the ordinary
course of its business and being used by the subscriber or user in the ordinary
course of its business or furnished by the subscriber or user for connection to
the facilities of the services and used in the ordinary course of its business;
or (B) being used by a provider of wire or electronic communication service in
the ordinary course of its business, or by an investigative or law enforcement
officer in the ordinary course of the officer's duties; or



(2)  A hearing aid or similar device being used to
correct subnormal hearing to a level not better than average.



"Electronic storage" means:



(1)  Any temporary, intermediate storage of a wire or
electronic communication incidental to the electronic transmission thereof; and



(2)  Any storage of the communication by an electronic
communication service for purposes of backup protection of the communication.



"Intercept" means the aural or other
acquisition of the contents of any wire, electronic, or oral communication
through the use of any electronic, mechanical, or other device.



"Investigative or law enforcement
officer" means any officer of the State or political subdivision thereof,
who is empowered by the law of this State to conduct investigations of or to
make arrests for offenses enumerated in this part.



"Oral communication" means any
utterance by a person exhibiting an expectation that the utterance is not
subject to interception under circumstances justifying that expectation, but
the term does not include any electronic communication.



"Organized crime" means any
combination or conspiracy to engage in criminal activity.



"Pen register" means a device that
records or decodes electronic or other impulses that identify the numbers
dialed or otherwise transmitted on the telephone line to which such device is
attached, but the such1 term does not include any device used by a
provider or customer of a wire or electronic communication service for billing,
or recording as an incident to billing, for communication services provided by
the provider or any device used by a provider or customer of a wire
communication service for cost accounting or other similar purposes in the
ordinary course of its business.



"Person" means any official,
employee, or agent of the United States or this State or political subdivision
thereof, and any individual, partnership, association, joint stock company,
trust, or corporation.



"Readily accessible to the general
public" means, with respect to radio communication, that the communication
is not:



(1)  Scrambled or encrypted;



(2)  Transmitted using modulation techniques whose
essential parameters have been withheld from the public with the intention of
preserving the privacy of the communication;



(3)  Carried on a subcarrier or other signal
subsidiary to a radio transmission;



(4)  Transmitted over a communication system provided
by a common carrier, unless the communication is a tone-only paging system
communication; or



(5)  Transmitted on frequencies allocated under part
25, subpart D, E, or F of part 74, or part 94 of the Rules of the Federal
Communications Commission, unless in the case of a communication transmitted on
a frequency allocated under part 74 that is not exclusively allocated to
broadcast auxiliary services, the communication is a two-way voice
communication by radio.



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



"Tracking device" means an electronic
or mechanical device that permits the tracking of the movement of a person or
object, but does not include a device when installed:



(1)  In a motor vehicle or other vehicle by or with
the permission of the owner or person in lawful possession of the motor vehicle
or other vehicle for the purpose of tracking the movement of the motor vehicle
or other vehicle; or



(2)  By or at the request of a police department or
law enforcement agency in a "bait vehicle".



"Trap and trace device" means a
device that captures the incoming electronic or other impulses that identify
the originating number of an instrument or device from which a wire or
electronic communication was transmitted.



"User" means any person or entity
that:



(1)  Uses an electronic communication service; and



(2)  Is duly authorized by the provider of the service
to engage in such use.



"Wire communication" means any 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 (including
the use of such connection in a switching station) furnished or operated by any
person engaged in providing or operating such facilities for the transmission
of intrastate, interstate, or foreign communications.  The term "wire
communication" includes, but is not limited to, cellular telephones,
cordless telephones, "tone and voice" pagers which transmit a voice
message along with a paging signal, and any electronic storage of a wire
communication. [L 1978, c 218, pt of §2; gen ch 1985; am L 1986, c 303, §1; am
L 1989, c 164, §3; am L 1998, c 96, §§2, 3; am L 2006, c 200, pt of §4]



 



Law Journals and Reviews



 



  State v. Rothman:  Expanding the Individual's Right to
Privacy under the Hawaii Constitution.  13 UH L. Rev. 619.



 



Case Notes



 



  Pen register warrant signed by a district court judge was
invalid.  70 H. 546, 779 P.2d 1.