August 1, 2012

Summary of statute(s): An individual may record or disclose the contents of 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. In addition, the state’s hidden camera law prohibits recording images of a person in private areas while in any stage of undress. The state provides both civil and criminal penalties for violators.

In-person conversations:  An individual can 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.

Electronic communications: Similarly, a person who is either a participant in a telephone 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. Because the provision of the statute dealing with wireless 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 e-mail messages sent between wireless devices. Haw. Rev. Stat. § 803-41. The one-party consent rule does not apply, however, to the installation of a recording device in a “private place” that will amplify or broadcast conversations outside that private place. All parties who have a reasonable expectation of privacy in that place must consent to the installation of a recording device. Haw. Rev. Stat. § 711-1111.

Hidden cameras: It is a felony to install or use a surveillance device in a private area to view a person in a “stage of undress or sexual activity” without the person’s consent. Haw. Rev. Stat. § 711-1110.9. Secretly taking images of another underneath their clothing while in public is a misdemeanor. Haw. Rev. Stat. § 711-1111. 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).

Criminal penalties:  Unlawful interceptions or disclosures of private communications are felonies punishable by up to five years imprisonment and a fine of up to $10,000. Haw. Rev. Stat. §§ 706-640, -60. Similar penalties are in place for the installation of hidden cameras. Further, the court may order the destruction of such recordings. Haw. Rev. Stat. § 711-1110.9. Violators of the state’s sexual assault law and those secretly taking images of individuals underneath their clothing can be punished by up to a year in jail and a fine of up to $2,000. Rev. Stat. §§ 706-640, -63.

Civil suits: Anyone whose communications have been illegally intercepted, disclosed or used may recover actual and punitive damages and any profits made by the violator, along with attorney fees and litigation costs. Haw. Rev. Stat. § 803-48.

Disclosing recordings: It is illegal to use or disclose the contents of any private oral 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).