HRS § 803-42
§ 803-42. Interception, access, and disclosure of wire, oral, or electronic communications, use of pen
register, trap and trace device, and mobile tracking device prohibited
(a)
Except as otherwise specifically provided in this part any person who:
(1)
Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor
to intercept, any wire, oral, or electronic communication;
(2)
Intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any
electronic, mechanical, or other device to intercept any wire, oral, or electronic communication;
(3)
Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral,
or electronic communication, knowing or having reason to know that the information was obtained through the
interception of a wire, oral, or electronic communication in violation of this part;
(4)
Intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication,
knowing or having reason to know that the information was obtained through the interception of a wire, oral,
or electronic communication in violation of this part;
(5)
(A)
Intentionally accesses without authorization a facility through which an electronic communication
service is provided; or
(B)
Intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or
prevents authorized access to a wire or electronic communication while it is in electronic storage;
(6)
Intentionally installs or uses a pen register or a trap and trace device without first obtaining a
court order; or
(7)
Intentionally installs or uses a mobile tracking device without first obtaining a search warrant or
other order authorizing the installation and use of such device;
shall be guilty of a class C felony.
(b)
(1)
It shall not be unlawful under this part for an operator of a switchboard, or an officer, employee, or
agent of a provider of wire or electronic communication services, whose facilities are used in the
transmission of a wire communication, to intercept, disclose, or use that communication in the normal course
of the officer's, employee's, or agent's employment while engaged in any activity which is a necessary
incident to the rendition of the officer's, employee's, or agent's service or to the protection of the rights
or property of the provider of that service; provided that such providers of wire communication service to the
public shall not utilize service observing or random monitoring except for mechanical or service quality
control checks.
(2)
It shall not be unlawful under this part for an officer, employee, or agent of the Federal
Communications Commission, in the normal course of the officer's, employee's, or agent's employment and in
discharge of the monitoring responsibilities exercised by the Commission in the enforcement of chapter 5 of
title 47 of the United States Code, to intercept a wire or electronic communication, or oral communication
transmitted by radio, or to disclose or use the information thereby obtained.
(3)
It shall not be unlawful under this part for a person not acting under color of law to intercept a
wire, oral, or electronic communication where such person is a party to the communication or where one of the
parties to the communication has given prior consent to such interception unless such communication is
intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or
laws of the United States or of this State; provided that installation in any private place, without consent
of the person or persons entitled to privacy therein, of any device for recording, amplifying, or broadcasting
sounds or events in that place, or use of any such unauthorized installation, or installation or use outside a
private place of such device to intercept 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 is
prohibited.
(4)
It shall not be unlawful under this part for a person acting under color of law to intercept a wire,
oral, or electronic communication, when such person is a party to the communication or one of the parties to
the communication has given prior consent to such interception.
(5)
It shall not be unlawful under this part for any person to intercept a wire, oral, or electronic
communication or to disclose or use the contents of an intercepted communication, when such interception is
pursuant to a valid court order under this chapter or as otherwise authorized by law; provided that a
communications provider with knowledge of an interception of communications accomplished through the use of
the communications provider's facilities shall report the fact and duration of the interception to the
administrative director of the courts of this State.
(6)
Notwithstanding any other law, providers of wire or electronic communication service, their officers,
employees, and agents, landlords, custodians, or other persons, are authorized to provide information,
facilities, or technical assistance to persons authorized by law to intercept or access wire, oral, or
electronic communications, to conduct electronic surveillance, or to install a pen register or trap and trace
device if such provider, its officers, employees, or agents, landlord, custodian, or other specified person,
has been provided with:
(A)
A court order directing such assistance signed by an authorizing judge; or
(B)
A certification in writing from the Attorney General of the United States, the Deputy Attorney
General of the United States, the Associate Attorney General of the United States, the attorney general of the
State of Hawaii, or the prosecuting attorney for each county that no warrant or court order is required by
law, that all statutory requirements have been met, and that the specific assistance is required, setting
forth the period of time during which the providing of the information, facilities, or technical assistance is
authorized and specifying the information, facilities, or technical assistance required.
No provider of wire or electronic communication service, officer, employee, or agent thereof, or
landlord, custodian, or other specified person shall disclose the existence of any access, interception, or
surveillance or the device used to accomplish the interception or surveillance for which the person has been
furnished a court order or certification under this part, except as may otherwise be required by legal process
and then only after prior notification to the party that provided the court order or certification.
No cause of action shall lie in any court against any provider of wire or electronic communication
service, its officers, employees, or agents, landlord, custodian, or other specified person for providing
information, facilities, or assistance in accordance with the terms of a court order or certification under
this part.
(7)
It shall not be unlawful under this part for any person:
(A)
To intercept or access an electronic communication made through an electronic communication system
configured so that such electronic communication is readily accessible to the general public.
(B)
To intercept any radio communication which is transmitted:
(i)
By any station for the use of the general public, or that relates to ships, aircraft, vehicles,
or persons in distress;
(ii)
By any governmental, law enforcement, civil defense, private land mobile, or public safety
communications system, including police and fire, readily accessible to the general public;
(iii)
By a station operating on an authorized frequency within the bands allocated to the amateur,
citizens band, or general mobile radio services; or
(iv)
By any marine or aeronautical communications system.
(C)
To engage in any conduct which:
(i)
Is prohibited by section 633 of the Communications Act of 1934; or
(ii)
Is excepted from the application of section 705(a) of the Communications Act of 1934 by section
705(b) of that Act.
(D)
To intercept any wire or electronic communication which is causing harmful interference to any
lawfully operating station or consumer electronic equipment to the extent necessary to identify the source of
such interference;
(E)
For users of the same frequency to intercept any radio communication made through a system that uses
frequencies monitored by individuals engaged in the providing or the use of such system, if such communication
is not scrambled or encrypted.
(8)
It shall not be unlawful under this part:
(A)
To use a pen register or a trap and trace device as specified in this part.
(B)
For a provider of electronic communication service to record the fact that a wire or electronic
communication was initiated or completed in order to protect such provider, another provider furnishing
service toward the completion of the wire or electronic communication, or a user of that service, from
fraudulent, unlawful, or abusive use of such service.
(C)
For a provider of electronic or wire communication service to use a pen register or a trap and trace
device for purposes relating to the operation, maintenance, and testing of the wire or electronic
communication service or to the protection of the rights or property of such provider, or to the protection of
users of that service from abuse of service or unlawful use of service.
(D)
To use a pen register or a trap and trace device where consent of the user of the service has been
obtained.
(9)
Good faith reliance upon a court order shall be a complete defense to any criminal prosecution for
illegal interception, disclosure, or use.
(10)
A person or entity providing electronic communication service to the public may divulge the contents
of any such communication:
(A)
As otherwise authorized by a court order;
(B)
With the lawful consent of the addressee, originator, or intended recipient;
(C)
To a person employed or authorized, or whose facilities are used, to forward such communication to
its destination; or
(D)
Which were inadvertently obtained by the service provider and which appear to pertain to the
commission of a crime, if divulged to a law enforcement agency.
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