Reporter's Recording Guide
Last updated May 2020Compare
Under the state’s eavesdropping law, an individual may record or disclose the contents of an oral, telephone or electronic communication if he or she is a party to the communication or has received prior consent from one of the parties.
However, the state’s privacy law prohibits the recording of sounds or images in private places without all parties’ consent, with greater penalties if a person in the image is in any stage of undress.
The state provides both civil and criminal penalties for violators.Compare
The consent requirements for recording conversations depends on the location of those conversations. Hawai‘i’s eavesdropping law generally permits an individual to record oral conversations where either the person is a party to the conversation or at least one of the participants has consented to the recording. Haw. Rev. Stat. § 803-42(b)(3)(A). Under that law, consent is not required for the recording of an oral communication spoken by a person who does not have a reasonable expectation of privacy in that communication. See definition of “oral communication,” Haw. Rev. Stat. § 803-41.
The state’s privacy law, however, imposes stricter requirements for recording conversations occurring in what it calls a “private place.” A “private place” is defined as “where one may reasonably expect to be safe from casual or hostile intrusion or surveillance but does not include a place to which the public or a substantial group thereof has access.” Haw. Rev. Stat. § 711-1100. In those spaces, an individual must obtain the consent of all parties who are entitled to privacy before installing or using a recording device to capture sounds from the private place that would not otherwise be audible or comprehensible outside the place. Haw. Rev. Stat. § 711-1111.
The privacy law, however, specifically permits the recording of police officers in the performance of their duties “under circumstances in which the officer has no reasonable expectation of privacy.” Haw. Rev. Stat. § 711-1111(1)(d).
Additionally, the Supreme Court of Hawai‘i has held that the “filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities,” is protected by the First Amendment and by the Hawai‘i constitution. State v. Russo, 407 P.3d 137 (Haw. 2017).Compare
Telephone and electronic communications
A person who is either a participant in a telephone, cellphone or other electronic communication, or with consent from one of the participants, is allowed to record or intercept any such communication. Haw. Rev. Stat. § 803-42(b)(3)(A).
Because the provision of the statute dealing with electronic communications applies to “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature,” consent likewise is required to disclose the contents of text or email messages sent between electronic devices. Haw. Rev. Stat. § 803-41.Compare
Under the state’s privacy law, it is illegal to install or use a surveillance device in a private place or elsewhere that records events in the private place without the person’s consent. Haw. Rev. Stat. § 711-1110.9, -1111. It is a felony when the recording involves a person in a “stage of undress or sexual activity,” and a misdemeanor when it does not. Haw. Rev. Stat. § 711-1110.9, -1111.
Secretly taking images of another underneath their clothing while in public is a misdemeanor. Haw. Rev. Stat. § 711-1111(1)(f).
A person can also be charged with a misdemeanor sexual assault for trespassing on private property to secretly observe somebody for the purpose of sexual gratification. Haw. Rev. Stat. § 707-733(c).Compare
Unlawful recordings, interceptions or disclosures of in-person, telephone or electronic communications under the eavesdropping law are felonies punishable by up to five years’ imprisonment and a fine of up to $10,000. Haw. Rev. Stat. §§ 706-640, -660. Similar penalties are in place for the installation of hidden cameras when the person is in a “stage of undress or sexual activity.” Id. Otherwise, installing devices to record sounds or images in private places without proper consent is punishable by up to one year in jail and a fine of up to $2,000. Haw. Rev. Stat. §§ 706-640, -663. Further, the court may order the destruction of recordings made in violation of the privacy law. Haw. Rev. Stat. § 711-1110.9(2), -1111.
Violators of the state’s sexual assault law and those secretly taking images of individuals underneath their clothing can also be punished by up to a year in jail and a fine of up to $2,000. Rev. Stat. §§ 706-640, -663.Compare
Anyone whose communications have been illegally intercepted, recorded, disclosed or used may bring a civil suit to recover actual damages and any profits made by the violator or $10,000, whichever is greater, along with punitive damages, attorney fees and litigation costs. Haw. Rev. Stat. § 803-48.Compare
It is illegal to use or disclose the contents of any private oral, telephone or electronic conversation, message or photographic image without the consent of at least one party to the conversation if the accused knew or had reason to know that the message was unlawfully intercepted. Haw. Rev. Stat. § 803-42(a)(3), -(a)(4).
It is also a felony to knowingly disclose a photo or video of an identifiable person in the nude or engaged in sexual activity without their consent, unless it occurred in public. Haw. Rev. Stat. § 711-1110.9.
If a journalist received an illegally recorded conversation and was not involved in the illegal conduct, the First Amendment likely protects the publication of such material, to the extent it is a matter of public concern and truthful. See Bartnicki v. Vopper, 532 U.S. 514 (2001). For more information, see this guide’s introductory chapter here.Compare
Right to record government officials in public
A growing consensus of courts have recognized a constitutional right to record government officials engaged in their duties in a public place. This First Amendment right to record generally encompasses both video and audio recording. For more information on the right to record broadly, see this guide’s introductory chapter here.
The U.S. Court of Appeals for the Ninth Circuit, which includes Hawai‘i, has held that there is a First Amendment right to record matters of public interest in public places, which “includes the right to record law enforcement officers engaged in the exercise of their official duties in public places.” Askins v. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018); see also Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995).
The Hawai‘i Supreme Court has further held that the “filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities” is protected by both the First Amendment and article I, section 4 of the Hawai‘i Constitution. State v. Russo, 407 P.3d 137, 149 (Haw. 2017) (quotations omitted).
Additionally, Hawai‘i’s privacy law specifically permits the filming and audio recording of police officers in the performance of their duties “under circumstances in which the officer has no reasonable expectation of privacy.” Haw. Rev. Stat. § 711-1111(1)(d). This is so long as the recording does not interfere “with the officer’s ability to maintain safety and control, secure crime scenes and accident sites, protect the integrity and confidentiality of investigations, and protect the public safety and order.” Id.Compare