HB13

SECTION 1. The legislature finds that Hawaii's penal code may not adequately address situations in which technological advances provide unique equipment that may be utilized for unauthorized surveillance purposes. These technological advances such as unmanned aircraft systems, also known as drones, often outpace statutory protections and present a substantial privacy risk. The legislature also finds that the proliferation and accessibility of unmanned aircraft systems has created concerns throughout the State about a person's right to privacy in their own home. The legislature believes that including the term "unmanned aircraft system" under Hawaii's violation of privacy statutes will encompass all technological advances that result in new devices, thereby reducing the need for further legislation to update the law.

The purpose of this Act is to:

(1) Clarify that under certain circumstances, the use of an unmanned aircraft system may be a violation of privacy; and

(2) Increase the penalty for violation of privacy in the second degree to a class C felony for offenses involving the use of an unmanned aircraft system.

SECTION 2. Section 711-1100, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

""Unmanned aircraft system" means any object that is a system consisting of an unmanned aircraft that is remotely controlled, either from the ground or from a manned aircraft, by use of data links and onboard sensors."

SECTION 3. Section 711-1110.9, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of violation of privacy in the first degree if, except in the execution of a public duty or as authorized by law:

(a) The person intentionally or knowingly installs or uses, or both, in any private place, without consent of the person or persons entitled to privacy therein, any device, including an unmanned aircraft system, for observing, recording, amplifying, or broadcasting another person in a stage of undress or sexual activity in that place; or

(b) The person knowingly discloses or threatens to disclose an image or video of another identifiable person either in the nude, as defined in section 712-1210, or engaging in sexual conduct, as defined in section 712-1210, without the consent of the depicted person, with intent to harm substantially the depicted person with respect to that person's health, safety, business, calling, career, education, financial condition, reputation, or personal relationships or as an act of revenge or retribution; provided that:

(i) This paragraph shall not apply to images or videos of the depicted person made:

(A) When the person was voluntarily nude in public or voluntarily engaging in sexual conduct in public; or

(B) Pursuant to a voluntary commercial transaction; and

(ii) Nothing in this paragraph shall be construed to impose liability on a provider of "electronic communication service" or "remote computing service" as those terms are defined in section 803-41, for an image or video disclosed through the electronic communication service or remote computing service by another person."

SECTION 4. Section 711-1111, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (1) to read:

"(1) A person commits the offense of violation of privacy in the second degree if, except in the execution of a public duty or as authorized by law, the person intentionally:

(a) Trespasses on property for the purpose of subjecting anyone to eavesdropping or other surveillance in a private place;

(b) Peers or peeps into a window or other opening of a dwelling or other structure adapted for sojourn or overnight accommodations for the purpose of spying on the occupant thereof or invading the privacy of another person with a lewd or unlawful purpose, under circumstances in which a reasonable person in the dwelling or other structure would not expect to be observed;

(d) Installs or uses, or both, in any private place, without consent of the person or persons entitled to privacy therein, any means or device, including an unmanned aircraft system, for observing, recording, amplifying, or broadcasting sounds or events in that place other than another person in a stage of undress or sexual activity; provided that this paragraph shall not prohibit a person from making a video or audio recording or taking a photograph of a law enforcement officer while the officer is in the performance of the officer's duties in a public place or under circumstances in which the officer has no reasonable expectation of privacy and the person is not interfering with the officer's ability to maintain safety and control, secure crime scenes and accident sites, protect the integrity and confidentiality of investigations, and protect the public safety and order;

(e) Installs or uses outside a private place any device, including an unmanned aircraft system, for hearing, recording, amplifying, or broadcasting sounds originating in that place which would not ordinarily be audible or comprehensible outside, without the consent of the person or persons entitled to privacy therein;

(f) Covertly records or broadcasts an image of another person's intimate area underneath clothing, by use of any device, including an unmanned aircraft system, and that image is taken while that person is in a public place and without that person's consent;

(g) Intercepts, without the consent of the sender or receiver, a message or photographic image by telephone, telegraph, letter, electronic transmission, or other means of communicating privately; but this paragraph does not apply to:

(i) Overhearing of messages through a regularly installed instrument on a telephone party line or an extension; or

(ii) Interception by the telephone company, electronic mail account provider, or telephone or electronic mail subscriber incident to enforcement of regulations limiting use of the facilities or incident to other operation and use;

(h) Divulges, without the consent of the sender or the receiver, the existence or contents of any message or photographic image by telephone, telegraph, letter, electronic transmission, or other means of communicating privately, if the accused knows that the message or photographic image was unlawfully intercepted or if the accused learned of the message or photographic image in the course of employment with an agency engaged in transmitting it; or

(i) Knowingly possesses materials created under circumstances prohibited in section 711-1110.9."

2. By amending subsection (4) to read:

"(4) Violation of privacy in the second degree is a misdemeanor[.]; provided that if the device used to commit the offense is an unmanned aircraft system, violation of privacy in the second degree is a class C felony. In addition to any penalties the court may impose, the court may order the destruction of any recording made in violation of this section."

SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	13
THIRTIETH LEGISLATURE, 2019
STATE OF HAWAII