HRS 0711-1111 ANNOTATIONS

Electronic eavesdropping, see chapter 803, part IV.

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.

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.

§711-1111 Commentary:

1. H.R.S. §§275-3 and 275-5.