Honorable Robert Bunda

President of the Senate

Twenty-Third State Legislature

Regular Session of 2005

State of Hawaii

Sir:

Your Committee on Judiciary and Hawaiian Affairs, to which was referred S.B. No. 965 entitled:

begs leave to report as follows:

The purpose of this measure is to repeal the existing law on electronic eavesdropping, commonly referred to as the wiretapping law, and to replace it with a wiretapping and electronic surveillance law that is organized and more compatible with federal law on the same subject.

In addition, this measure establishes an electronic surveillance unit in the Department of the Attorney General to review all wiretapping applications and to make written recommendations to the court for approval or disapproval of the application. The measure also creates exceptions from criminal liability for individuals who are designated by investigative or law enforcement officers as providers of special assistance in wiretapping, and creates procedures for conducting wiretapping in emergency situations without a prior court order.

Testimony in support of the measure was submitted by the Office of the Lieutenant Governor, the Department of the Attorney General, the Department of the Prosecuting Attorney for the County of Maui, the Hawaii County Police Department, Mothers Against Drunk Driving, and one individual. Testimony in opposition to the measure was submitted by the Office of the Public Defender and the ACLU of Hawaii. Offering comments on the measure were the Department of the Prosecuting Attorney for the City and County of Honolulu, the Department of Public Safety, and the Honolulu Police Department.

Your Committee has amended this measure by deleting the electronic surveillance unit as well as the requirements for a memorandum by the Attorney General recommending approval or disapproval of the application for a wiretap. Your Committee believes that the establishment of an electronic surveillance unit with specific authority being accorded to the Attorney General to make recommendations to the court is not only unnecessary, but may also compromise the impartial and independent role of the Judiciary in determining the propriety of a specific wiretap application.

Your Committee also amended the measure by removing any special exceptions given to individuals who are designated by law enforcement officers engaging in wiretapping activities. Although special exceptions may be appropriate under specific and special circumstances, your Committee believes that the law enforcement officers should not have the authority to grant that exception. Instead, your Committee believes that a court, after considering the application for a wiretap and the facts and circumstances that are included in an application, may include such protective orders or conditions as the court determines to be necessary.

The emergency provision of the measure that allows for a wiretap without a court order has also been deleted. An impartial and independent evaluation by the court between the zealous pursuit to obtain a wiretap for suspected criminal activity and the established right to privacy is not only necessary, but can be obtained within a relatively short period of time. The Judiciary places a judge on twenty–four hour call for the express purpose of issuing warrants and similar orders, and if absolutely necessary, should be able to make a judicial determination in the event of an emergency.

Your Committee has also made other amendments to the bill regarding the preservation of existing law on the use of the contents of a wiretap that violates law, and the deletion of limitations on an aggrieved person's right to suppress the evidence or appeal an adverse ruling in addition to all other remedies and sanctions to which the aggrieved person may be entitled. Your Committee replaced the need for probable cause for the issuance of a court order for a pen register or trap and trace device. Instead of requiring that federal law be incorporated into Hawaii law, your Committee believes that Hawaii law must be interpreted taking into consideration Hawaii's Constitution and history protecting an individual's right to privacy.

As affirmed by the record of votes of the members of your Committee on Judiciary and Hawaiian Affairs that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 965, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 965, S.D. 1, and be referred to the Committee on Ways and Means.