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 1           whether the order was an order with respect to which
 
 2           the requirements of section 803-H(1)(b)(ii) and
 
 3           803-H(3)(d) did not apply by reason of section
 
 4           803-H(11);
 
 5      (c)  The fact that the order or extension was granted as
 
 6           applied for, was modified, or was denied;
 
 7      (d)  The period of interceptions authorized by the order and
 
 8           the number and duration of any extensions of the order;
 
 9      (e)  The offense specified in the order or application, or
 
10           extension of an order;
 
11      (f)  The identity of the applying investigative or law
 
12           enforcement officer and agency making the application
 
13           and the person authorizing the application; and
 
14      (g)  The nature of the facilities from which or the place
 
15           where communications were to be intercepted.
 
16      (2)  By January 1 of each year, the attorney general and the
 
17 county prosecutors shall report to the administrative director of
 
18 the courts:
 
19      (a)  The information required by subsection (1) with respect
 
20           to each application for an order or extension made
 
21           during the preceding calendar year;
 
22      (b)  A general description of the interceptions made under
 
23           the order or extension, including:
 

 
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 1           (i)  The approximate nature and frequency of
 
 2                incriminating communications intercepted;
 
 3          (ii)  The approximate nature and frequency of other
 
 4                communications intercepted;
 
 5         (iii)  The approximate number of persons whose
 
 6                communications were intercepted; and
 
 7          (iv)  The approximate nature, amount, and cost of the
 
 8                personnel and other resources used in the
 
 9                interceptions;
 
10      (c)  The number of arrests resulting from interceptions made
 
11           under an order or extension, and the offenses for which
 
12           the arrests were made;
 
13      (d)  The number of trials resulting from the interceptions;
 
14      (e)  The number of motions to suppress made with respect to
 
15           the interceptions and the number granted or denied;
 
16      (f)  The number of convictions resulting from the
 
17           interceptions and the offenses for which the
 
18           convictions were obtained and a general assessment of
 
19           the importance of the interceptions;
 
20      (g)  The information required by paragraphs (b) through (f)
 
21           with respect to orders or extensions obtained in a
 
22           preceding calendar year; and
 
23      (h)  Other information required by the office of the
 

 
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 1           administrative director of the courts.
 
 2      (3)  In March of each year, the administrative director of
 
 3 the courts shall transmit to the Legislature a full and complete
 
 4 report concerning the number of applications for orders
 
 5 authorizing or approving the interception of wire, oral, or
 
 6 electronic communications pursuant to this part and the number of
 
 7 orders and extensions granted or denied pursuant to this part
 
 8 during the preceding calendar year.  The report shall include a
 
 9 summary and analysis of the data required to be filed with the
 
10 administrative director of the courts by subsections (1) and (2).
 
11 The administrative director of the courts may issue binding
 
12 guidelines dealing with the content and form of the reports
 
13 required to be filed by subsections (1) and (2).
 
14      §803-J Recovery of civil damages authorized.  (1)  Except
 
15 as provided in section 803-B(2)(a)(ii), any person whose wire,
 
16 oral, or electronic communication is intercepted, disclosed, or
 
17 intentionally used in violation of this subpart, may recover in a
 
18 civil action such relief as may be appropriate from the person or
 
19 entity that engaged in the violation.
 
20      (2)  In an action under this section, appropriate relief
 
21 includes:
 
22      (a)  Preliminary and other equitable or declaratory relief
 
23           as may be appropriate;
 

 
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 1      (b)  Damages under subsection (3) and punitive damages in
 
 2           appropriate cases; and
 
 3      (c)  A reasonable attorney's fee and other litigation costs
 
 4           reasonably incurred.
 
 5      (3)  (a)  In an action under this section, if the conduct in
 
 6           violation of this subpart is the private viewing of a
 
 7           private satellite video communication that is not
 
 8           scrambled or encrypted or if the communication is a
 
 9           radio communication that is transmitted on frequencies
 
10           allocated under subpart D of part 74 of the rules of
 
11           the Federal Communications Commission that is not
 
12           scrambled or encrypted and the conduct is not for a
 
13           tortious or illegal purpose or for purposes of direct
 
14           or indirect commercial advantage or private commercial
 
15           gain, then the court shall assess the damages as
 
16           follows:
 
17           (i)  If the person who engaged in that conduct has not
 
18                previously been enjoined under section 803-B(5)
 
19                and has not been found liable in a prior civil
 
20                action under this section, the court shall assess
 
21                the greater of the sum of actual damages suffered
 
22                by the plaintiff or statutory damages of not less
 
23                than $50 and not more than $500; or
 

 
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 1          (ii)  If, on one prior occasion, the person who engaged
 
 2                in that conduct has been enjoined under section
 
 3                803-B(5) or has been found liable in a civil
 
 4                action under this section, the court shall assess
 
 5                the greater of the sum of actual damages suffered
 
 6                by the plaintiff or statutory damages of not less
 
 7                than $100 and not more than $1,000.
 
 8      (b)  In any other action under this section, the court may
 
 9           assess as damages whichever is the greater of:
 
10           (i)  The sum of the actual damages suffered by the
 
11                plaintiff and any profits made by the violator as
 
12                a result of the violation; or
 
13          (ii)  Statutory damages of whichever is the greater of
 
14                $100 a day for each day of violation or $10,000.
 
15      (4)  A good faith reliance on:
 
16      (a)  A court warrant or order, a grand jury subpoena, a
 
17           legislative authorization, or a statutory
 
18           authorization;
 
19      (b)  A request of the attorney general or a prosecutor of a
 
20           county under section 803-H(7); or
 
21      (c)  A good faith determination that section 803-B(3)
 
22           permitted the conduct complained of;
 
23 is a complete defense against any civil or criminal action
 

 
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 1 brought under this part or any other law.
 
 2      (5)  A civil action under this section shall not be
 
 3 commenced later than two years after the date upon which the
 
 4 claimant first has a reasonable opportunity to discover the
 
 5 violation.
 
 6      §803-K  Injunction against illegal interception.  Whenever
 
 7 it appears that any person is engaged or is about to engage in
 
 8 any act that constitutes or will constitute a felony violation of
 
 9 this part, the attorney general may initiate a civil action in a
 
10 circuit court of this State to enjoin the violation.  The court
 
11 shall proceed as soon as practicable to the hearing and
 
12 determination of the action, and at any time before final
 
13 determination, may enter a restraining order or prohibition or
 
14 take any other action as is warranted to prevent a continuing and
 
15 substantial injury to the State or to any person or class of
 
16 persons for whose protection the action is brought.  A proceeding
 
17 under this section is governed by the Hawaii rules of civil
 
18 procedure; except that, if an indictment, information, or
 
19 criminal complaint has been returned against the respondent,
 
20 discovery is governed by the Hawaii rules of penal procedure.
 
21                 Subpart C.  Stored Communications
 
22      §803-L Unlawful access to stored communications.  (1)
 
23 Except as provided in subsection (3), whoever:
 

 
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 1      (a)  Intentionally accesses without authorization a facility
 
 2           through which an electronic communication service is
 
 3           provided; or
 
 4      (b)  Intentionally exceeds an authorization to access that
 
 5           facility; and
 
 6 thereby obtains, alters, or prevents authorized access to a wire
 
 7 or electronic communication, while it is in electronic storage in
 
 8 the system, shall be punished as provided in subsection (2).
 
 9      (2)  (a)  A violation of subsection (1) committed for
 
10           purposes of commercial advantage, malicious destruction
 
11           or damage, or private commercial gain shall be:
 
12           (i)  A misdemeanor, if a first offense; or
 
13          (ii)  A class C felony, for all subsequent offenses.
 
14      (b)  All other violations of subsection (1) shall be a
 
15           misdemeanor.
 
16      (3)  Subsections (1) and (2) do not apply with respect to
 
17 conduct authorized:
 
18      (a)  By the person or entity providing a wire or electronic
 
19           communications service;
 
20      (b)  By a user of that service with respect to a
 
21           communication of or intended for that user; or
 
22      (c)  By sections 803-H, 803-N, or 803-O.
 
23      §803-M Disclosure of contents.(1)  Except as provided in
 

 
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 1 subsection (2):
 
 2      (a)  A person or entity providing an electronic
 
 3           communication service to the public shall not knowingly
 
 4           divulge to any person or entity the contents of a
 
 5           communication while in electronic storage by that
 
 6           service; and
 
 7      (b)  A person or entity providing remote computing service
 
 8           to the public shall not knowingly divulge to any person
 
 9           or entity the contents of any communication that is
 
10           carried or maintained on that service:
 
11           (i)  On behalf of, and received by means of electronic
 
12                transmission from (or created by means of computer
 
13                processing of communications received by means of
 
14                electronic transmission from), a subscriber or
 
15                customer of the service; and
 
16          (ii)  Solely for the purpose of providing storage or
 
17                computer processing services to the subscriber or
 
18                customer, if the provider is not authorized to
 
19                access the contents of those communications for
 
20                purposes of providing any services other than
 
21                storage or computer processing.
 
22      (2)  A person or entity may divulge the contents of a
 
23 communication:
 

 
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 1      (a)  To an addressee or intended recipient of the
 
 2           communication or an agent of the addressee or intended
 
 3           recipient;
 
 4      (b)  As otherwise authorized in section 803-B(2)(a), 803-G,
 
 5           or 803-N;
 
 6      (c)  With the lawful consent of the originator or an
 
 7           addressee of intended recipient of the communication,
 
 8           or the subscriber in the case of remote computer
 
 9           service;
 
10      (d)  To a person employed or authorized or whose facilities
 
11           are used to forward the communication to its
 
12           destination;
 
13      (e)  As may be necessarily incident to the rendition of the
 
14           service or to the protection of the rights or property
 
15           of the provider of that service; or
 
16      (f)  To a law enforcement agency if the contents:
 
17           (i)  Were inadvertently obtained by the service
 
18                provider; and
 
19          (ii)  Appear to pertain to the commission of a crime.
 
20      §803-N Requirements for governmental access.(1)  A
 
21 governmental entity may require the disclosure by a provider of
 
22 electronic communication service of the contents of an electronic
 
23 communication that is in electronic storage in an electronic
 

 
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 1 communications system for one hundred and eighty days or less,
 
 2 only pursuant to a warrant.  A governmental entity may require
 
 3 the disclosure by a provider of electronic communications
 
 4 services of the contents of an electronic communication that has
 
 5 been in electronic storage in an electronic communications system
 
 6 for more than one hundred and eighty days by the means available
 
 7 under subsection (2).
 
 8      (2)  (a)  A governmental entity may require a provider of
 
 9           remote computing service to disclose the contents of
 
10           any electronic communication to which this paragraph is
 
11           made applicable by paragraph (b):
 
12           (i)  Without required notice to the subscriber or
 
13                customer, if the governmental entity obtains a
 
14                warrant; or
 
15          (ii)  With prior notice from the governmental entity to
 
16                the subscriber or customer, if the governmental
 
17                entity:
 
18                (A)  Uses an administrative subpoena authorized by
 
19                     statute or a grand jury or trial subpoena; or
 
20                (B)  Obtains a court order for the disclosure
 
21                     under subsection (4);
 
22           except that delayed notice may be given pursuant to
 
23           section 803-P.
 

 
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 1      (b)  Paragraph (a) applies with respect to any electronic
 
 2           communication that is held or maintained on that
 
 3           service:
 
 4           (i)  On behalf of, and received by means of electronic
 
 5                transmission from (or created by means of computer
 
 6                processing of communications received by means of
 
 7                electronic transmission from), a subscriber or
 
 8                customer of the remote computing service; and
 
 9          (ii)  Solely for the purpose of providing storage or
 
10                computer processing services to the subscriber or
 
11                customer, if the provider is not authorized to
 
12                access the contents of those communications for
 
13                purposes of providing any services other than
 
14                storage or computer processing.
 
15      (3)  (a)  (i)  Except as provided in subparagraph (ii), a
 
16                provider of electronic communication service or
 
17                remote computing service may disclose a record or
 
18                other information pertaining to a subscriber to or
 
19                customer of the service (not including the
 
20                contents of communications covered by subsection
 
21                (1) or (2)) to any person other than a
 
22                governmental entity.
 
23          (ii)  A provider of electronic communication service or
 

 
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 1                remote computing service shall disclose a record
 
 2                or other information pertaining to a subscriber to
 
 3                or customer of the service (not including the
 
 4                contents of communications covered by subsection
 
 5                (1) or (2)) to a governmental entity only when the
 
 6                governmental entity:
 
 7                (A)  Obtains a warrant;
 
 8                (B)  Obtains a court order for the disclosure
 
 9                     under subsection (4); or
 
10                (C)  Has the consent of the subscriber or customer
 
11                     to the disclosure.
 
12         (iii)  A provider of electronic communication service or
 
13                remote computing service shall disclose to a
 
14                governmental entity the name, address, local and
 
15                long distance telephone toll billing records,
 
16                telephone number or other subscriber number or
 
17                identity, and length of service of a subscriber to
 
18                or customer of the service and the types of
 
19                services the subscriber or customer utilized, when
 
20                the governmental entity uses an administrative
 
21                subpoena authorized by statute or a grand jury or
 
22                trial subpoena or any means available under
 
23                subparagraph (ii).
 

 
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 1      (b)  A governmental entity receiving records or information
 
 2           under this subsection is not required to provide notice
 
 3           to a subscriber or customer.
 
 4      (4)  A court order for disclosure under subsection (2) or
 
 5 (3) may be issued by a designated judge and shall issue only if
 
 6 the governmental entity offers specific and articulable facts
 
 7 showing that there are reasonable grounds to believe that the
 
 8 contents of a wire or electronic communication, or the records or
 
 9 other information sought, are relevant and material to an ongoing
 
10 criminal investigation.  A court issuing an order pursuant to
 
11 this section, on a motion made promptly by the service provider,
 
12 may quash or modify the order if the information or records
 
13 requested are unusually voluminous in nature or compliance with
 
14 the order otherwise would cause an undue burden on the provider.
 
15      (5)  No cause of action shall lie in any court against any
 
16 provider of wire or electronic communication service, its
 
17 officers, employees, agents, or other specified persons for
 
18 providing information, facilities, or assistance in accordance
 
19 with the terms of a court order, warrant, subpoena, or
 
20 certification under this subpart.
 
21      (6)  (a)  A provider of wire or electronic communication
 
22           services or a remote computing service, upon the
 
23           request of a governmental entity, shall take all
 

 
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 1           necessary steps to preserve records and other evidence
 
 2           in its possession pending the issuance of a court order
 
 3           or other process.
 
 4      (b)  Records referred to in paragraph (a) shall be retained
 
 5           for a period of ninety days, which shall be extended
 
 6           for an additional ninety-day period upon a renewed
 
 7           request by the governmental entity.
 
 8      §803-O Backup preservation.(1)  A governmental entity
 
 9 acting under section 803-N(2) may include in its subpoena or
 
10 court order a requirement that the service provider to whom the
 
11 request is directed create a backup copy of the contents of the
 
12 electronic communications sought in order to preserve those
 
13 communications.  Without notifying the subscriber or customer of
 
14 the subpoena or court order, the service provider shall create
 
15 the backup copy as soon as practicable, consistent with its
 
16 regular business practices, and shall confirm to the governmental
 
17 entity that the backup copy has been made.  The backup copy shall
 
18 be created within two business days after receipt by the service
 
19 provider of the subpoena or court order.
 
20      (2)  Notice to the subscriber or customer shall be made by
 
21 the governmental entity within three days after receipt of the
 
22 confirmation, unless notice is delayed pursuant to section
 
23 803-P(1).
 

 
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 1      (3)  The service provider shall not destroy the backup copy
 
 2 until the later of:
 
 3      (a)  The delivery of the information; or
 
 4      (b)  The resolution of any proceedings, including appeals of
 
 5           any proceeding, concerning the State's subpoena or
 
 6           court order.
 
 7      (4)  The service provider shall release the backup copy to
 
 8 the requesting governmental entity no sooner than fourteen days
 
 9 after the governmental entity's notice to the subscriber or
 
10 customer, if the service provider:
 
11      (a)  Has not received notice from the subscriber or customer
 
12           that the subscriber or customer has challenged the
 
13           governmental entity's request; or
 
14      (b)  Has not initiated proceedings to challenge the request
 
15           of the governmental entity.
 
16      (5)  A governmental entity may seek to require the creation
 
17 of a backup copy under subsection (1) if, in its sole discretion,
 
18 the entity determines that there is reason to believe that
 
19 notification under section 803-N of the existence of the subpoena
 
20 or court order may result in destruction of or tampering with
 
21 evidence.  This determination is not subject to challenge by the
 
22 subscriber, customer, or service provider.
 
23      (6)  (a)  Within fourteen days after notice by the
 

 
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 1           governmental entity to the subscriber or customer under
 
 2           subsection (2), the subscriber or customer may file a
 
 3           motion to quash the subpoena or vacate the court order,
 
 4           with copies served upon the governmental entity and
 
 5           with written notice of the challenge to the service
 
 6           provider.  A motion to vacate a court order shall be
 
 7           filed with the designated judge who issued the order.
 
 8           A motion to quash a subpoena shall be filed in the
 
 9           appropriate state court.  The motion or application
 
10           shall contain an affidavit or sworn statement:
 
11           (i)  Stating that the applicant is a customer or
 
12                subscriber to the service from which the contents
 
13                of electronic communications maintained for
 
14                applicant have been sought; and
 
15          (ii)  Stating the applicant's reasons for believing that
 
16                the records sought are not relevant to a
 
17                legitimate law enforcement inquiry or that there
 
18                has not been substantial compliance with this
 
19                subpart in some other respect.
 
20      (b)  Service shall be made under this section upon a
 
21           governmental entity by delivering or mailing by
 
22           registered or certified mail a copy of the papers to
 
23           the person, office, or department specified in the
 

 
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 1           notice which the customer has received pursuant to this
 
 2           subpart.  For the purposes of this section, the term
 
 3           "delivery" has the meaning given that term in the
 
 4           Hawaii rules of civil procedure.
 
 5      (c)  If the court finds that the customer has complied with
 
 6           paragraphs (a) and (b), the court shall order the
 
 7           governmental entity to file a sworn response, which may
 
 8           be filed in camera if the governmental entity includes
 
 9           in its response the reasons that make in camera review
 
10           appropriate.  If the court is unable to determine the
 
11           motion or application on the basis of the parties'
 
12           initial allegations and response, the court may conduct
 
13           additional proceedings as it deems appropriate.  All
 
14           proceedings shall be completed and the motion or
 
15           application decided as soon as practicable after the
 
16           filing of the governmental entity's response.
 
17      (d)  If the court finds that the applicant is not the
 
18           subscriber or customer for whom the communications
 
19           sought by the governmental entity are maintained, or
 
20           that there is a reason to believe that the law
 
21           enforcement inquiry is legitimate and that the
 
22           communications sought are relevant to that inquiry, it
 
23           shall deny the motion or application and order the
 

 
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 1           process enforced.  If the court finds that the
 
 2           applicant is the subscriber or customer for whom the
 
 3           communications sought by the governmental entity are
 
 4           maintained and that there is not a reason to believe
 
 5           that the communications sought are relevant to a
 
 6           legitimate law enforcement inquiry or that there has
 
 7           not been substantial compliance with this subpart, it
 
 8           shall order the process quashed.
 
 9      (e)  A court order denying a motion or application under
 
10           this section shall not be deemed a final order, and no
 
11           interlocutory appeal may be taken therefrom by the
 
12           customer.
 
13      §803-P  Delayed notice.
 
14      (1)  (a)  A governmental entity action under section
 
15           803-N(2) may:
 
16           (i)  When a court order is sought, include in the
 
17                application a request, which the court shall
 
18                grant, for an order delaying the notification
 
19                required under section 803-N(2) for a period not
 
20                to exceed ninety days, if the court determines
 
21                that there is reason to believe that notification
 
22                of the existence of the court order may have an
 
23                adverse result described in paragraph (b); or
 

 
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 1          (ii)  When an administrative subpoena authorized by
 
 2                statute or a grand jury subpoena is obtained,
 
 3                delay the notification required under section
 
 4                803-N(2) for a period not to exceed ninety days
 
 5                upon the execution of a written certification of a
 
 6                supervisory official that there is reason to
 
 7                believe that notification of the existence of the
 
 8                subpoena may have an adverse result described in
 
 9                paragraph (b).
 
10      (b)  An adverse result for purposes of paragraph (a) is:
 
11           (i)  Endangering the life or physical safety of an
 
12                individual;
 
13          (ii)  Flight from prosecution;
 
14         (iii)  Destruction of or tampering with evidence;
 
15          (iv)  Intimidation of potential witnesses; or
 
16           (v)  Otherwise seriously jeopardizing an investigation
 
17                or unduly delaying a trial.
 
18      (c)  The governmental entity shall maintain a true copy of
 
19           certification under paragraph (a)(ii).
 
20      (d)  Extensions of the delay of notification provided in
 
21           section 803-N of up to ninety days each may be granted
 
22           by the court upon application, or by certification by a
 
23           governmental entity, but only in accordance with
 

 
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 1           subsection (2).
 
 2      (e)  Upon expiration of the period of delay of notification
 
 3           under paragraph (a) or (d), the governmental entity
 
 4           shall serve upon, or deliver by registered or first-
 
 5           class mail to, the customer or subscriber a copy of the
 
 6           process or request together with notice that:
 
 7           (i)  States with reasonable specificity the nature of
 
 8                the law enforcement inquiry; and
 
 9          (ii)  Informs the customer or subscriber:
 
10                (A)  That information maintained for the customer
 
11                     or subscriber by the service provider named
 
12                     in the process or request was supplied to or
 
13                     requested by that governmental authority and
 
14                     the date on which the supplying or request
 
15                     took place;
 
16                (B)  That notification of the customer or
 
17                     subscriber was delayed;
 
18                (C)  What governmental entity or court made the
 
19                     certification or determination pursuant to
 
20                     which that delay was made; and
 
21                (D)  Which provision of this part allowed the
 
22                     delay.
 
23      (f)  As used in this subsection, the term "supervisory
 

 
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 1           official" means the investigative agent in charge or
 
 2           assistant investigative agent in charge or an
 
 3           equivalent of an investigating agency's headquarters or
 
 4           regional office or the chief prosecuting attorney or
 
 5           the first deputy prosecuting attorney or an equivalent
 
 6           of a prosecuting attorney's headquarters or regional
 
 7           office.
 
 8      (2)  A governmental entity acting under section 803-N, when
 
 9 it is not required to notify the subscriber or customer under
 
10 section 803-N(2)(a)(i), or to the extent that it may delay notice
 
11 pursuant to subsection (1), may apply to a designated judge for
 
12 an order commanding a provider of electronic communications
 
13 service or remote computing service to whom a warrant, subpoena,
 
14 or court order is directed, for such period as the court deems
 
15 appropriate, not to notify any other person of the existence of
 
16 the warrant, subpoena, or court order.  The court shall enter the
 
17 order if it determines that there is reason to believe that
 
18 notification of the existence of the warrant, subpoena, or court
 
19 order will result in:
 
20      (a)  Endangering the life or physical safety of an
 
21           individual;
 
22      (b)  Flight from prosecution;
 
23      (c)  Destruction of or tampering with evidence;
 

 
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 1      (d)  Intimidation of potential witnesses; or
 
 2      (e)  Otherwise seriously jeopardizing an investigation or
 
 3           unduly delaying a trial.
 
 4      §803-Q Cost reimbursement.  (1)  Except as otherwise
 
 5 provided in subsection (3), a governmental entity obtaining the
 
 6 contents of communications, records, or other information under
 
 7 section 803-M, 803-N, or 803-O shall pay to the person or entity
 
 8 assembling or providing the information a fee for reimbursement
 
 9 for costs that are reasonably necessary and that have been
 
10 directly incurred in searching for, assembling, reproducing, or
 
11 otherwise providing the information.  The reimbursable costs
 
12 shall include any costs due to necessary disruption of normal
 
13 operations of any electronic communication service or remote
 
14 computing service in which the information may be stored.
 
15      (2)  The amount of the fee provided by subsection (1) shall
 
16 be as mutually agreed by the governmental entity and the person
 
17 or entity providing the information or, in the absence of
 
18 agreement, shall be as determined by the court that issued the
 
19 order for production of the information or the court before which
 
20 a criminal prosecution relating to the information would be
 
21 brought, if no court order was issued for production of the
 
22 information.
 
23      (3)  The requirement of subsection (1) does not apply with
 

 
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 1 respect to records or other information maintained by a
 
 2 communications common carrier that relate to telephone toll
 
 3 records and telephone listings obtained under section 803-N.
 
 4 However, the court may order a payment as described in subsection
 
 5 (1), if the court determines the information required is
 
 6 unusually voluminous in nature or otherwise caused an undue
 
 7 burden on the provider.
 
 8      §803-R Civil action.(1)  Except as provided in section
 
 9 803-N(5), any provider of electronic communication service,
 
10 subscriber, or other person aggrieved by any violation relating
 
11 to this subpart in which the conduct constituting the violation
 
12 is engaged in with a knowing or intentional state of mind, may
 
13 recover such relief as may be appropriate, in a civil action,
 
14 from the person or entity that engaged in that violation.
 
15      (2)  In a civil action under this section, appropriate
 
16 relief includes:
 
17      (a)  Such preliminary and other equitable or declaratory
 
18           relief as may be appropriate;
 
19      (b)  Damages under subsection (3); and
 
20      (c)  A reasonable attorney's fee and other litigation costs
 
21           reasonably incurred.
 
22      (3)  The court may assess as damages in a civil action under
 
23 this section the sum of the actual damages suffered by the
 

 
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 1 plaintiff and any profits made by the violator as a result of the
 
 2 violation, but in no case shall a person entitled to recover
 
 3 receive less than the sum of $1,000.  If the violation is knowing
 
 4 or intentional, the court may assess punitive damages.  In the
 
 5 case of a successful action to enforce liability under this
 
 6 section, the court may assess the costs of the action, together
 
 7 with reasonable attorney's fees determined by the court.
 
 8      (4)  If a court determines that any state or county agency
 
 9 or department has violated this subpart and the court finds that
 
10 the circumstances surrounding the violation raise the question
 
11 whether an officer or employee of the state or county agency or
 
12 department acted knowingly or intentionally with respect to the
 
13 violation, the agency or department concerned promptly shall
 
14 initiate a proceeding to determine whether disciplinary action is
 
15 warranted against the officer or employee.
 
16      (5)  A good faith reliance on:
 
17      (a)  A court warrant or order, a grand jury subpoena, a
 
18           legislative authorization, or a statutory
 
19           authorization;
 
20      (b)  A request of an investigative or law enforcement
 
21           officer under section 803-H(7); or
 
22      (c)  A good faith determination that section 803-B(3)
 
23           permitted the conduct complained of;
 

 
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 1 is a complete defense to any civil or criminal action brought
 
 2 pursuant to this subpart or any other law.
 
 3      (6)  A civil action under this section may not be commenced
 
 4 later than two years after the date upon which the claimant first
 
 5 discovered or had a reasonable opportunity to discover the
 
 6 violation.
 
 7      §803-S Exclusivity of remedies.  The remedies and sanctions
 
 8 described in this subpart are the only judicial remedies and
 
 9 sanctions for nonconstitutional violation of this subpart.
 
10                Subpart D.  Mobile Tracking Devices
 
11      §803-T  Application for authorization to install and use a
 
12 mobile tracking device.(1)  A designated judge is empowered to
 
13 issue a warrant or other order for the installation of a mobile
 
14 tracking device.  The order may authorize the use of that device
 
15 within the jurisdiction of the court and outside that
 
16 jurisdiction, if the device is installed in that jurisdiction.
 
17      (2)  Upon application to the designated judge for a court
 
18 order, the designated judge should be satisfied that there are
 
19 sufficient facts and circumstances contained within the
 
20 application to establish probable cause to believe that the use
 
21 of a mobile tracking device will discover the fruits,
 
22 instrumentalities, or evidence of a crime or is relevant to an
 
23 ongoing criminal investigation.
 

 
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 1      (3)  If the designated judge is so satisfied, the judge
 
 2 shall issue an order specifying:
 
 3      (a)  The identity, if known, of the person who is the
 
 4           subject of the investigation;
 
 5      (b)  The number of mobile tracking devices to be used and
 
 6           the geographical locations where the devices are to be
 
 7           installed; and
 
 8      (c)  The identity, if known, of any person who may have a
 
 9           privacy interest in the point of installation of the
 
10           mobile tracking device.
 
11      (4)  An order authorizing installation and use of a mobile
 
12 tracking device shall not exceed sixty days.  Extensions of the
 
13 orders may be granted only upon reapplication establishing
 
14 probable cause to justify the continued use of a mobile tracking
 
15 device.  The period of the extension shall not exceed sixty days.
 
16      (5)  The order shall direct that the order be sealed until
 
17 otherwise directed by the court.
 
18      §803-U General prohibition on pen register and trap and
 
19 trace device use; exception.(1)  Except as provided in this
 
20 section, no person shall install or use a pen register or a trap
 
21 and trace device without first obtaining a court order under
 
22 section 803-W.
 
23      (2)  The prohibition of subsection (1) does not apply with
 

 
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 1 respect to the use of a pen register or a trap and trace device
 
 2 by a provider of electronic or wire communication service:
 
 3      (a)  Relating to the operation, maintenance, and testing of
 
 4           a wire or electronic communication service or to the
 
 5           protection of the rights or property of the provider or
 
 6           to the protection of users of that service from abuse
 
 7           of service or unlawful use of service;
 
 8      (b)  To record the fact that a wire or electronic
 
 9           communication was initiated or completed in order to
 
10           protect the provider, another provider furnishing
 
11           service toward the completion of the wire
 
12           communication, or a user of that service from
 
13           fraudulent, unlawful, or abusive use of service; or
 
14      (c)  Where the consent of the user of that service has been
 
15           obtained.
 
16      (3)  A government agency authorized to install and use a pen
 
17 register under this subpart shall use technology reasonably
 
18 available to it that restricts the recording or decoding of
 
19 electronic or other impulses to the dialing and signaling
 
20 information utilized in call processing.
 
21      (4)  Whoever knowingly violates subsection (1) shall be
 
22 guilty of a misdemeanor.
 
23      §803-V  Application for an order for a pen register or a
 

 


 

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 1 trap and trace device.(1)  The attorney general or the
 
 2 prosecuting attorney for each county, or a subordinate designated
 
 3 to act in either's absence or incapacity, or an investigative or
 
 4 law enforcement officer may make application for an order or an
 
 5 extension of an order under section 803-W authorizing or
 
 6 approving the installation and use of a pen register or a trap
 
 7 and trace device under this subpart, in writing under oath or
 
 8 equivalent affirmation, to a designated judge.
 
 9      (2)  An application under subsection (1) shall include:
 
10      (a)  The identity of the official or the investigative or
 
11           law enforcement officer making the application and the
 
12           identity of the law enforcement agency conducting the
 
13           investigation; and
 
14      (b)  A certification by the applicant that the information
 
15           likely to be obtained is relevant to an ongoing
 
16           criminal investigation being conducted by that agency.
 
17      §803-W Issuance of an order for a pen register or a trap
 
18 and trace device.  (1)  Upon an application made under section
 
19 803-V, the court shall enter an ex parte order authorizing the
 
20 installation and use of a pen register or a trap and trace device
 
21 within the jurisdiction of the court, if the court finds that the
 
22 official or the investigative or law enforcement officer has
 
23 certified to the court that the information likely to be obtained
 

 
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 1 by the installation and use is relevant to an ongoing criminal
 
 2 investigation.
 
 3      (2)  An order issued under this section:
 
 4      (a)  Shall specify:
 
 5           (i)  The identity, if known, of the person to whom is
 
 6                leased or in whose name is listed the telephone
 
 7                line to which the pen register or trap and trace
 
 8                device is to be attached;
 
 9          (ii)  The identity, if known, of the person who is the
 
10                subject of the criminal investigation;
 
11         (iii)  The number and, if known, physical location of the
 
12                telephone line to which the pen register or trap
 
13                and trace device is to be attached and, in the
 
14                case of a trap and trace device, the geographic
 
15                limits of the trap and trace order; and
 
16          (iv)  A statement of the offense to which the
 
17                information likely to be obtained by the pen
 
18                register or trap and trace device relates; and
 
19      (b)  Shall direct, upon the request of the applicant, the
 
20           furnishing of information, facilities, and technical
 
21           assistance necessary to accomplish the installation of
 
22           the pen register or trap and trace device under section
 
23           803-X.
 

 
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 1      (3)  (a)  An order issued under this subpart shall authorize
 
 2           the installation and use of a pen register or a trap
 
 3           and trace device for a period not to exceed sixty days.
 
 4      (b)  Extensions of an order may be granted, but only upon an
 
 5           application for an order under section 803-V and upon
 
 6           the judicial finding required by subsection (1).  The
 
 7           period of extension shall be for a period not to exceed
 
 8           sixty days.
 
 9      (4)  An order authorizing or approving the installation and
 
10 use of a pen register or a trap and trace device shall direct
 
11 that:
 
12      (a)  The order be sealed until otherwise ordered by the
 
13           court; and
 
14      (b)  The person owning or leasing the line to which the pen
 
15           register or a trap and trace device is attached, or who
 
16           has been ordered by the court to provide assistance to
 
17           the applicant, not disclose the existence of the pen
 
18           register or trap and trace device or the existence of
 
19           the investigation to the listed subscriber or to any
 
20           other person, unless or until otherwise ordered by the
 
21           court.
 
22      §803-X Assistance in installation and use of a pen register
 
23 or a trap and trace device.  (1)  Upon the request of the
 

 
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 1 attorney general or the county prosecuting attorney, or a
 
 2 subordinate designated to act in either's absence or incapacity,
 
 3 or an investigative or law enforcement officer authorized to
 
 4 install and use a pen register under this subpart, a provider of
 
 5 wire or electronic communication service, landlord, custodian, or
 
 6 other person shall furnish the investigative or law enforcement
 
 7 officer forthwith all information, facilities, and technical
 
 8 assistance necessary to accomplish the installation of the pen
 
 9 register unobtrusively and with a minimum of interference with
 
10 the services that the person so ordered by the court accords the
 
11 party with respect to whom the installation and use is to take
 
12 place, if the assistance is directed by a court order as provided
 
13 in section 803-W(2)(b).
 
14      (2)  Upon the request of the attorney general or the county
 
15 prosecuting attorney, or a subordinate designated to act in
 
16 either's absence or incapacity, or an officer of a law
 
17 enforcement agency authorized to receive the results of a trap
 
18 and trace device under this subpart, a provider of a wire or
 
19 electronic communication service, landlord, custodian, or other
 
20 person shall install the device forthwith on the appropriate line
 
21 and shall furnish the investigative or law enforcement officer
 
22 all additional information, facilities, and technical assistance
 
23 including installation and operation of the device unobtrusively
 

 
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 1 and with a minimum of interference with the services that the
 
 2 person so ordered by the court accords the party with respect to
 
 3 whom the installation and use is to take place, if the
 
 4 installation and assistance is directed by a court order as
 
 5 provided in section 803-W(2)(b).  Unless otherwise ordered by the
 
 6 court, the results of the trap and trace device shall be
 
 7 furnished, pursuant to section 803-W(2) or 803-Y, to the officer
 
 8 of a law enforcement agency, designated in the court order, at
 
 9 reasonable intervals during regular business hours for the
 
10 duration of the order.
 
11      (3)  A provider of a wire or electronic communication
 
12 service, landlord, custodian, or other person who furnishes
 
13 facilities or technical assistance pursuant to this section shall
 
14 be reasonably compensated for the reasonable expenses incurred in
 
15 providing the facilities and assistance.
 
16      (4)  No cause of action shall lie in any court against any
 
17 provider of a wire or electronic communication service, its
 
18 officers, employees, agents, or other specified persons for
 
19 providing information, facilities, or assistance in accordance
 
20 with the terms of a court order under this part or request
 
21 pursuant to section 803-Y.
 
22      (5)  A good faith reliance on a court order under this part,
 
23 a request pursuant to section 803-Y, a legislative authorization,
 

 
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 1 or a statutory authorization is a complete defense against any
 
 2 civil or criminal action brought under this part or any other
 
 3 law.
 
 4      §803-Y Emergency pen register and trap and trace device
 
 5 installation.(1)  Notwithstanding any other provision of this
 
 6 part to the contrary, any investigative or law enforcement
 
 7 officer, specially designated by the attorney general of this
 
 8 State or the prosecuting attorney for a county of the State, who
 
 9 reasonably determines that:
 
10      (a)  An emergency situation exists that involves:
 
11           (i)  Immediate danger of death or serious bodily injury
 
12                to any person; or
 
13          (ii)  Conspiratorial activities characteristic of
 
14                organized crime and
 
15           that requires the installation and use of pen register
 
16           or a trap and trace device before an order authorizing
 
17           the installation and use can, with due diligence, be
 
18           obtained, and
 
19      (b)  There are grounds upon which an order could be entered
 
20           under this subpart to authorize the installation and
 
21           use;
 
22 may order installed and use a pen register or trap and trace
 
23 device if, within forty-eight hours after the installation has
 

 
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 1 occurred or begins to occur, an order approving the installation
 
 2 or use is issued in accordance with section 803-W.
 
 3      (2)  In the absence of an authorizing order, the use shall
 
 4 immediately terminate when the information sought is obtained,
 
 5 when the application for the order is denied, or when forty-eight
 
 6 hours have lapsed since the installation of the pen register or
 
 7 trap and trace device, whichever is earlier.
 
 8      (3)  The knowing installation or use by any investigative or
 
 9 law enforcement officer of a pen register or trap and trace
 
10 device pursuant to subsection (1) without application for the
 
11 authorizing order within forty-eight hours of the installation
 
12 shall constitute a violation of this part.
 
13      (4)  A provider of a wire or electronic service, landlord,
 
14 custodian, or other person who furnished facilities or technical
 
15 assistance pursuant to this section shall be compensated for the
 
16 reasonable expenses incurred in providing the facilities and
 
17 assistance.
 
18      §803-Z  Reports concerning pen registers and trap and trace
 
19 devices.  The attorney general shall annually report to the
 
20 legislature on the number of pen register orders and orders for
 
21 trap and trace devices applied for by law enforcement agencies of
 
22 the State."
 
23      SECTION 2.  Section 641-13, Hawaii Revised Statutes, is
 

 
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 1 amended to read as follows:
 
 2      "§641-13  By State in criminal cases.  An appeal may be
 
 3 taken by and on behalf of the State from the district or circuit
 
 4 courts to the supreme court, subject to chapter 602, in all
 
 5 criminal cases, in the following instances:
 
 6      (1)  From an order or judgment quashing, setting aside, or
 
 7           sustaining a motion to dismiss[,] any indictment or
 
 8           complaint or any count thereof;
 
 9      (2)  From an order or judgment[,] sustaining a special plea
 
10           in bar[,] or dismissing the case where the defendant
 
11           has not been put in jeopardy;
 
12      (3)  From an order granting a new trial;
 
13      (4)  From an order arresting judgment;
 
14      (5)  From a ruling on a question of law adverse to the
 
15           State, where the defendant was convicted and appeals
 
16           from the judgment;
 
17      (6)  From the sentence, on the ground that it is illegal;
 
18      (7)  From a pretrial order granting a motion for the
 
19           suppression of evidence, including a confession or
 
20           admission, or the return of property in which case the
 
21           intermediate appellate court or the supreme court, as
 
22           the case may be, shall give priority to [such an] the
 
23           appeal and the order shall be stayed pending the
 

 
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 1           outcome of the appeal;
 
 2      (8)  From an order denying a request by the State for
 
 3           protective order for nondisclosure of witness for
 
 4           [their] reason of personal safety under Rule 16(e)(4)
 
 5           of the Hawaii Rules of Penal Procedure, in which case
 
 6           the intermediate appellate court or the supreme court,
 
 7           as the case may be, shall give priority to [such] the
 
 8           appeal and the order shall be stayed pending outcome of
 
 9           [such] the appeal;
 
10      (9)  From a judgment of acquittal following a jury verdict
 
11           of guilty[.]; and
 
12     (10)  From a denial of an application for an order of
 
13           approval or authorization of the interception of a
 
14           wire, oral, or electronic communication pursuant to
 
15           section 803-H."
 
16      SECTION 3.  Chapter 803, part IV, Hawaii Revised Statutes,
 
17 is repealed.
 
18      SECTION 4.  In codifying the new part added to chapter 803,
 
19 Hawaii Revised Statutes, by section 1 of this Act, the revisor of
 
20 statutes shall substitute appropriate section numbers for the
 
21 letters used in the new sections' designations in this Act.
 
22      SECTION 5.  If any provision of this Act, or the application
 
23 thereof to any person or circumstance is held invalid, the
 

 
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 1 invalidity does not affect other provisions or applications of
 
 2 the Act which can be given effect without the invalid provision
 
 3 or application, and to this end the provisions of this Act are
 
 4 severable.
 
 5      SECTION 6.  This Act does not affect rights and duties that
 
 6 matured, penalties that were incurred, and proceedings that were
 
 7 begun, before its effective date.
 
 8      SECTION 7.  Statutory material to be repealed is bracketed.
 
 9 New statutory material is underscored.
 
10      SECTION 8.  This Act shall take effect upon its approval.