§803-42  Interception, access, and
disclosure of wire, oral, or electronic communications, use of pen register,
trap and trace device, and mobile tracking device prohibited.  (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;



(5)  (A)  Intentionally
accesses without authorization a facility through which an electronic
communication service is provided; or



(B)  Intentionally exceeds an authorization to
access that facility; and thereby obtains, alters, or prevents authorized
access to a wire or electronic communication while it is in electronic storage;



(6)  Intentionally discloses, or attempts to disclose,
to any other person the contents of any wire, oral, or electronic
communication, intercepted by means authorized by subsection (b)(1), (2), or
(3), or section 803‑44 or 803‑46; and



(A)  Either:



(i)  Knowing or having reason to know that the
information was obtained through the interception of the communication in
connection with a criminal investigation; or



(ii)  Having obtained or received the information
in connection with a criminal investigation; and



(B)  With the intent to improperly obstruct,
impede, or interfere with a duly authorized criminal investigation[;]



(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.



  (b)(1)  It shall not be unlawful under this part for an
operator of a switchboard, or an officer, employee, or agent of a provider of
wire or electronic communication services, whose facilities are used in the
transmission of a wire communication, to intercept, disclose, or use that
communication in the normal course of the officer's, employee's, or agent's
employment while engaged in any activity that is either a necessary incident to
the rendition of the officer's, employee's, or agent's service or to the
protection of the rights or property of the provider of that service; provided
that providers of wire communication service to the public shall not utilize
service observing or random monitoring except for mechanical or service quality
control checks.



(2)  It shall not be unlawful under this part for an
officer, employee, or agent of the Federal Communications Commission, in the
normal course of the officer's, employee's, or agent's employment and in discharge
of the monitoring responsibilities exercised by the Commission in the
enforcement of Title 47, chapter 5, of the United States Code, to intercept a
wire or electronic communication, or oral communication transmitted by radio,
or to disclose or use the information thereby obtained.



(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 unless the communication is intercepted for the purpose of
committing any criminal or tortious act in violation of the Constitution or
laws of the United States or of this State.



(B)  It shall not be unlawful for a person
acting under color of law to install in any private place, without consent of
the person or persons entitled to privacy therein, any device for recording,
amplifying, or broadcasting sounds or events in that place, or use of any such
unauthorized installation, or installation or use outside a private place of
such device to intercept sounds originating in that place which would not
ordinarily be audible or comprehensible outside.



(4)  It shall not be unlawful under this part for a
person acting under color of law to intercept a wire, oral, or electronic
communication, when the person is a party to the communication or one of the
parties to the communication has given prior consent to the interception.



(5)  It shall not be unlawful under this part for any
person to intercept a wire, oral, or electronic communication or to disclose or
use the contents of an intercepted communication, when such interception is
pursuant to a valid court order under this chapter or as otherwise authorized
by law; provided that a communications provider with knowledge of an
interception of communications accomplished through the use of the
communications provider's facilities shall report the fact and duration of the
interception to the administrative director of the courts of this State.



(6)  Notwithstanding any other law to the contrary,
providers of wire or electronic communication service, their officers,
employees, and agents, landlords, custodians, or other persons, are authorized
to provide information, facilities, or technical assistance to persons
authorized by law to intercept or access wire, oral, or electronic
communications, to conduct electronic surveillance, or to install a pen
register or trap and trace device if such provider, its officers, employees, or
agents, landlord, custodian, or other specified person, has been provided with:



(A)  A court order directing such assistance
signed by the designated judge; or



(B)  A certification in writing from the
Attorney General of the United States, the Deputy Attorney General of the
United States, the Associate Attorney General of the United States, the
attorney general of the State of Hawaii, or the prosecuting attorney for each
county that no warrant or court order is required by law, that all statutory
requirements have been met, and that the specific assistance is required,
setting forth the period of time during which the providing of the information,
facilities, or technical assistance is authorized and specifying the
information, facilities, or technical assistance required.



No provider of wire or
electronic communication service, officer, employee, or agent thereof, or
landlord, custodian, or other specified person shall disclose the existence of
any access, interception, or surveillance or the device used to accomplish the
interception or surveillance for which the person has been furnished a court
order or certification under this part, except as may otherwise be required by
legal process and then only after prior notification to the party that provided
the court order or certification.



No cause of action shall lie in
any court against any provider of wire or electronic communication service, its
officers, employees, or agents, landlord, custodian, or other specified person
for providing information, facilities, or assistance in accordance with the
terms of a court order or certification under this part.



(7)  It shall not be unlawful under this part for any
person:



(A)  To intercept or access an electronic
communication made through an electronic communication system configured so
that the electronic communication is readily accessible to the general public.



(B)  To intercept any radio communication that
is transmitted:



(i)  By any station for the use of the general
public, or that relates to ships, aircraft, vehicles, or persons in distress;



(ii)  By any governmental, law enforcement, civil
defense, private land mobile, or public safety communications system, including
police and fire, readily accessible to the general public;



(iii)  By a station operating on an authorized
frequency within the bands allocated to the amateur, citizens band, or general
mobile radio services; or



(iv)  By any marine or aeronautical
communications system.



(C)  To engage in any conduct that:



(i)  Is prohibited by section 633 of the
Communications Act of 1934 (47 U.S.C. §553); or



(ii)  Is excepted from the application of section
705(a) of the Communications Act of 1934 by section 705(b) of that Act (47
U.S.C. §605).



(D)  To intercept any wire or electronic
communication the transmission of which is causing harmful interference to any
lawfully operating station or consumer electronic equipment to the extent
necessary to identify the source of the interference;



(E)  For other users of the same frequency to
intercept any radio communication made through a system that uses frequencies
monitored by individuals engaged in the providing or the use of the system, if
the communication is not scrambled or encrypted.



(8)  It shall not be unlawful under this part:



(A)  To use a pen register or a trap and trace
device as specified in this part.



(B)  For a provider of electronic communication
service to record the fact that a wire or electronic communication was
initiated or completed in order to protect the provider, another provider
furnishing service toward the completion of the wire or electronic
communication, or a user of that service, from the fraudulent, unlawful, or
abusive use of such service.



(C)  For a provider of electronic or wire
communication service to use a pen register or a trap and trace device for
purposes relating to the operation, maintenance, and testing of the wire or
electronic communication service or to the protection of the rights or property
of the provider, or to the protection of users of that service from abuse of
service or unlawful use of service.



(D)  To use a pen register or a trap and trace
device where consent of the user of the service has been obtained.



(9)  Good faith reliance upon a court order shall be a
complete defense to any criminal prosecution for illegal interception,
disclosure, or use.



(10)  Except as provided in this section, a person or
entity providing an electronic communication service to the public shall not
intentionally divulge the contents of any communication (other than a
communication to the person or entity or an agent thereof) while in
transmission on that service to any person or entity other than an addressee or
intended recipient of the communication or an agent of the addressee or intended
recipient.



(11)  A person or entity providing electronic
communication service to the public may divulge the contents of any such
communication:



(A)  As otherwise authorized by a court order
or under this part;



(B)  With the lawful consent of the originator,
addressee, or intended recipient of the communication;



(C)  To a person employed or authorized, or
whose facilities are used, to forward the communication to its destination; or



(D)  That was inadvertently obtained by the
service provider and that appears to pertain to the commission of a crime, if
divulged to a law enforcement agency. [L 1978, c 218, pt of §2; gen ch 1985; am
L 1986, c 303, §2; am L 1989, c 164, §4; am L 2006, c 200, pt of §4]



 



Law Journals and Reviews



 



  The Protection of Individual Rights Under Hawai`i's Constitution.  14 UH L. Rev. 311.



 



Case Notes



 



  Does not permit bugging of a private place unless the parties
entitled to privacy consent.  66 H. 653, 675 P.2d 754.



  Allows interception of wire or oral communication if one
party to the conversation consents to the interception.  67 H. 197, 682 P.2d
79.



  Not violated because wearing of recording device did not
constitute "installation".  67 H. 307, 686 P.2d 816.



 



Hawaii Legal Reporter Citations



 



  Scope.  81-2 HLR 810715.