STAND. COM. REP. NO. 1146-04
Honolulu, Hawaii
, 2004
RE: S.B. No. 2447
S.D. 1
H.D. 1
Honorable Calvin K.Y. Say
Speaker, House of Representatives
Twenty-Second State Legislature
Regular Session of 2004
State of Hawaii
Sir:
Your Committee on Judiciary, to which was referred S.B. No. 2447, S.D. 1, entitled:
"A BILL FOR AN ACT RELATING TO CRIME REDUCTION,"
begs leave to report as follows:
The purpose of this bill is to modify Hawaii's Electronic Eavesdropping Law to enhance Hawaii law enforcement agencies' criminal investigation capabilities.
Section 2 of this measure establishes within the Department of the Attorney General (AG) a surveillance review unit whose duties are:
(1) To review and recommend necessary changes to each state and county application to a judge for an order authorizing interception of wire, oral, or electronic communications, prior to submittal of the application to the judge; and
(2) To prepare a memorandum, to be submitted to the judge along with the application, recommending whether the judge should or should not approve the application and thereby authorize the interception.
Section 3 of this measure adds a new part to chapter 803, Hawaii Revised Statutes (HRS), Wiretapping and Electronic Surveillance, that is similar in scope to existing Part IV of chapter 803, HRS, Electronic Eavesdropping, which is repealed in Section 5 of this measure.
Section 4 of this measure adds denial of an application for an order approving or authorizing interception of a wire, oral, or electronic communication to the list of judicial acts in criminal cases enumerated in section 641-13, HRS, for which an appeal to the Hawaii Supreme Court may be taken by and on behalf of the State.
The AG, Department of Public Safety, Department of the Prosecuting Attorney of the City and County of Honolulu, Honolulu Police Department, High Intensity Drug Trafficking Area Task Force, and four concerned individuals testified in support of this bill. The Office of the Public Defender, Americans for Democratic Action/Hawaii, Community Alliance on Prisons, and a concerned individual opposed this measure.
The stated purposes for this bill as received, according to its Section 1, includes "[striking] an appropriate balance between protecting individual rights and equipping law enforcement officials with the necessary tools to combat the war on ice and other illicit drugs and to protect Hawaii's homeland security." Section 1 proposes a legislative finding that "effective electronic surveillance is necessary to detect and gather evidence on illicit drug use and also to aid in the fighting of terrorists attacks." Section 1 further states that "The war on ice is so important that the effort has in fact become a joint state and federal initiative."
Your Committee shares the aspirations of this measure's proponents that our State be protected from terrorist attacks and our neighborhoods rid of crystal methamphetamine "drug houses." Your Committee is not convinced, however, that this measure is narrowly tailored to address matters of drug trafficking or terrorism. Section 803-H of this bill instead seems to expand law enforcement opportunities to aim covert surveillance at a wide spectrum of conduct that, while reprehensible, does not involve illicit drugs or terrorism. For example, section 803-H(11) and (12) of this measure incorporate by reference numerous offenses listed in the definition of "racketeering activity" in section 842-1, HRS, and in the definitions of "criminal offense against a victim who is a minor" and "sexually violent offense" in section 846E-1, HRS.
By contrast, a comparison between the offenses enumerated in section 803-44, HRS (for which the court may currently authorize law enforcement officers to intercept private communications) and the offenses listed in section 803-H of this bill show no increased emphasis on drug distribution and terrorism. The reference to "any dealing in narcotic or other dangerous drugs" in the definition of "racketeering activity" under section 842-1, HRS, which section 803-H(11) incorporates by reference, seems to add nothing to the existing inclusion of "distribution of dangerous, harmful, or detrimental drugs" among predicate offenses. As to homeland security, while section 803-H(13) of this bill adds "violations relating to firearms or explosives," the current list already includes "murder, kidnapping, or felony criminal property damage involving the danger of serious bodily injury."
Another purpose listed in Section 1 of this measure is to "update the laws to keep abreast with current technology." Section 1 admonishes that "Hawaii should step into the light of the modern electronic era" and suggests that "the State's electronic surveillance law should at all times be patterned after the federal law, in the same manner as Hawaii's controlled substances law is constantly amended to conform to changes in the federal controlled substances law. Otherwise, Hawaii's electronic surveillance law is obsolete and useless at any point in time."
Your Committee disagrees that the wiretap law and controlled substances act should be amended in lockstep fashion. Amendments to Hawaii’s Controlled Substances Act, chapter 329, HRS, effected through 2001 Act 203, 2002 Act 165, and 2003 Act 151, conform definitions, change elements of specific drug offenses, and update schedules of controlled substances (e.g., replacing "except levo-alphacetylmethadol also known as LAAM" with "except levo-alphacetylmethadol, levomethadyl acetate, or LAAM.") This bill, on the other hand, shifts the balance of law enforcement and personal privacy in a manner that extends far beyond technical revision.
As noted above, Section 1 of this measure lists as a purpose, "[striking] an appropriate balance between protecting individual rights and equipping law enforcement officials with . . . necessary [law enforcement] tools." Section 1 proposes a legislative finding that "the federal electronic surveillance law provides adequate constitutional substantive and procedural safeguards that protect individual rights and liberties."
Your Committee is concerned about the adequacy of protection of individual rights. The vast majority of Hawaii's citizens engage in personal and intimate conversations in the privacy of their own homes, speak on the telephone, leave voicemail messages, "surf" the internet, send and receive e-mail messages, perform financial transactions electronically, and otherwise go about daily life without a trace of involvement in planning terrorist attacks, manufacturing or distributing crystal methamphetamine, or stealing their neighbors' goods to "feed their habit."
Our law-abiding citizens do not want law enforcement officers to work with "one hand tied behind their backs"; but neither do they want those officers to work "with one ear against their door."
It is well established, by law and by societal expectation, that one of the many freedoms we, as Americans, enjoy is freedom from unreasonable searches and seizures. In our homes, on our person, we cherish our privacy. Subjecting our every move to government monitoring and scrutiny would leave no place for the creativity, joy, intimacy, and pleasure inherent to the pursuit of happiness.
Our State Constitution affords special protection to the right to privacy. Unlike its counterpart in the United States Constitution, Article 1, section 7 of the Constitution of the State of Hawaii explicitly protects the right of the people to be secure against unreasonable invasions of privacy and explicitly requires particularity in the description of communications sought to be intercepted.
Your Committee cannot, therefore, agree that "the State's electronic surveillance law should at all times be patterned after the federal law."
Your Committee previously heard H.B. No. 2370, a Bill for an Act Relating to Electronic Surveillance, which contained language and provisions substantially similar to this measure, and passed that bill as H.B. No. 2370, H.D. 1. Your Committee revised that H.B. No. 2370 to include several due process and privacy protections contained in the existing statute. Because orders issued in federal courts applying federal law are not subject to the greater protection of individual privacy that our State Constitution provides, your Committee deleted proposed section 803-AA within H.B. No. 2370 as introduced, which would have allowed electronic surveillance evidence obtained pursuant to a federal order authorizing the electronic surveillance to be admissible in Hawaii state courts.
Your Committee also amended H.B. No. 2370 by:
(1) Deleting language that establishes a surveillance review unit within the Department of the AG;
(2) Deleting provisions authorizing retroactively-approved "emergency" interceptions of wire, oral, or electronic communication and "emergency" installation or use of a pen register or trap and trace device;
(3) Restoring the thirty-day time period, provided for in the existing statute, before which each party must be furnished with a copy of the court order and accompanying application that authorizes or approves an interception if any intercepted wire, oral, or electronic communication or evidence derived therefrom is to be received in evidence or disclosed in a trial, hearing, or other court proceeding;
(4) Restoring all of the items of information presently required to be stated in an application for an order that authorizes or approves the interception of communication under section 803-46(a)(1) through (a)(7), HRS; and
(5) Making technical, nonsubstantive amendments for clarity, consistency, and style.
H.B. No. 2370, H.D. 1, did not include a provision analogous to section 4 of this measure (S.B. No 2447, S.D. 1) as introduced, which allows the State to appeal to the Hawaii Supreme Court from a lower court judge's ruling on an application for an order authorizing or approving the interception of wire, oral, or electronic communications. Your Committee does not believe that provision will provide the State with the relief it requires unless the application is part of an ongoing "criminal case." Moreover, the matter of the State's authority to appeal from a denial of an application is treated in section 803-J(j)(3) of this bill as introduced, whose counterpart in H.B. No. 2370, H.D. 1, is section 803-J(i)(2).
Your Committee has amended this measure by deleting its contents and inserting the contents of H.B. 2370, H.D.1, with the following additional changes:
(1) Deleting the purpose section of H.B. No. 2370, H.D. 1, to avoid findings that may bind courts to interpret this Act in the future in a manner that is not intended;
(2) Adding the following new exception to section 803-B to reflect the U.S. Supreme Court opinion in Bartnicki v. Vopper, 523 U.S. 514 (2001), that struck, as unconstitutional, a provision in the Pennsylvania wiretap statute that would penalize a reporter who broadcast a legally obtained copy of an intercepted communication:
"It shall not be unlawful under this part for any person to disclose an illegally intercepted communication in the course of publication of truthful information of public concern.";
(3) Specifying in section 803-H that the judge designated to authorize a wiretap is a judge "in the county where the interception is to take place" for consistency with existing section 803-44, HRS;
(4) Deleting, as overly broad in scope, item (15) in section 803-H, that would permit interception of private communications that might reveal any conspiracy to commit any crime listed in section 803-H;
(5) Including in section 803-I the following restriction from section 803-45(f), HRS, to reserve highly intrusive interceptions of wire, oral, or electronic communications for the most serious criminal activities:
"(f) No testimony or evidence relating to a wire, oral, or electronic communication or any evidence derived therefrom intercepted in accordance with the provisions of this part shall be admissible in support of any misdemeanor charge.";
(6) Specifying in section 803-J(c) that the wire, oral, or electronic communication to be intercepted is to be "within the county in which the court is sitting", for consistency with existing section 803-46(c), HRS;
(7) Including in section 803-J(c) the following language in section 803-46(c), HRS, to enhance protection of privacy:
"If the order allows physical entry to accomplish the interception, the issuing judge shall find that the interception could not be accomplished by means other than physical entry.";
(8) Including in section 803-J(d)(2) the requirement in section 803-46(d)(2), HRS, that each order authorizing or approving the interception of any wire, oral, or electronic communication specify "the means by which such interceptions shall be made";
(9) Reducing from thirty to fifteen days the maximum time limit under section 803-J(e) for extension of an order authorizing or approving the interception of any wire, oral, or electronic communication, for consistency with existing section 803-46(e), HRS;
(10) Including in section 803-J(e) the following minimization provisions contained in section 803-46(e)(1) and (e)(2), HRS:
"(1) The interception shall be conducted in such a way as to minimize the resulting invasion of privacy, including but not limited to the following methods of minimization:
(A) Conversations that appear unlikely to result in incriminating conversations relating to the offense for which the order is issued shall be subject to intermittent monitoring; and
(B) Privileged conversations, including those between a person and the person's spouse, attorney, physician, or clergy, shall not be intercepted unless both parties to the conversation are named or described in the application and order.
(2) In determining whether incriminating statements are likely to occur during a conversation the following factors should be considered:
(A) The parties to the conversation;
(B) The particular offense being investigated;
(C) The subject matter of the conversation;
(D) The subject matter of previous conversations between the same parties and whether any incriminating statements occurred; and
(E) The hour and day of conversation.";
(11) Including in section 803-J(g)(1) the following language from section 803-46(g)(1), HRS, to permit parties whose conversations have been intercepted to request destruction of evidence of their conversations under certain circumstances:
"However, upon the request of all the parties to particular conversations, evidence of conversations between those parties shall be destroyed (A) if there are no incriminating statements; or (B) if any incriminating statements relate to only misdemeanor offenses.";
(12) Revising section 803-J(g)(3) to require all known parties to receive an inventory containing a notice with information about applications for and orders authorizing intercepted communications, to reflect the provisions in section 803-46(g)(4), HRS;
(13) Adding a provision to section 803-J(g)(3) to require the inventory to indicate whether incriminating statements were intercepted, consistent with section 803-46(g)(4)(D), HRS;
(14) Changing "may" to "shall" in section 803-J(g) to require, rather than permit, the judge, in the judge's discretion, to allow inspection of those portions of intercepted communications, applications, and orders as the judge determines to be in the interest of justice;
(15) Replacing language in section 803-J(h) prohibiting introduction of the contents of any intercepted wire, oral, or electronic communication or evidence derived therefrom into evidence without required advance disclosure of "a copy of the court order and accompanying application under which the interception was authorized or approved" with language in section 803-46(h) requiring disclosure of "copies of the documents required to be disclosed, and contents of intercepted communications or other evidence obtained as a result of interception which is sought to be admitted in evidence.";
(16) Changing "may" to "shall" in section 803-J(i)(1) to require, rather than permit, an intercepted party to have access to the intercepted communication, if found to be in the interest of justice;
(17) Limiting the complete defense of good faith reliance on a court order in section 803-L(d)(2) to civil actions brought under the new part, for consistency with good faith reliance provisions in existing section 803-48, HRS;
(18) Changing section 803-P(d) to the more stringent "probable cause" standard for issuance of a court order that a provider of electronic communication service or remote computing service disclose the contents of communications, consistent with section 803-47.6(e), HRS;
(19) Changing the penalty in section 803-W(d) for prohibited use of a pen register or trap and trace device from misdemeanor to Class C felony, as provided in existing section 803-42(a), HRS, because even though using a pen register or trap and trace device is less intrusive than intercepting contents of communications, such activity still represents a significant invasion of privacy;
(20) Adding a new section 803-BB to incorporate the existing severability provision in section 803-49, HRS; and
(21) Making technical, nonsubstantive changes for purposes of clarity and style.
As affirmed by the record of votes of the members of your Committee on Judiciary that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 2447, S.D. 1, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 2447, S.D. 1, H.D. 1, and be placed on the calendar for Third Reading.
Respectfully submitted on behalf of the members of the Committee on Judiciary,
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____________________________ ERIC G. HAMAKAWA, Chair |
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