Hawaii is a one-party consent state, meaning that a person may record or share the contents of an oral, telephone or electronic communication if they are a party to the communication or have received prior consent from another party. Hawaii’s privacy laws create a reasonable expectation of privacy for an individual in a private place, so a person may not record sounds or images in a private place without the consent of all parties in the private place.
Different Degrees of Violation Under Video Surveillance Laws
An individual in Hawaii commits the offense of violation of privacy in the first degree if they use a hidden camera or other device to make a recording of another person in a stage of undress or participating in sexual activity. This offense is a Class C felony. Otherwise, a violation of another party’s reasonable expectation of privacy is a misdemeanor of the second degree.
The penalty for a Class C felony is up to five years in prison and a fine up to $10,000. The penalty for a second-degree misdemeanor is up to one year in jail and a fine up to $2,000. A person can be charged for every separate instance of video or audio recording.
An individual who is convicted in criminal court for this offense can also be sued in civil court. The victim can recover actual damages and profits made by the violator, whichever is greater, along with punitive damages, attorney fees and litigation costs. The court may order the destruction of any recordings that violate another person’s privacy.
Private and Public Places
A private place is a space where a person can reasonably expect to be safe from casual or hostile intrusion or surveillance, such as a changing room. It does not include a place to which the public or a substantial group has access.
A public place is a place to which the public or a substantial group of people have access. Public places include parks, hallways, lobbies, and portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence. For example, a playground or parking lot of an apartment complex could be understood to be a public place.
Dashboard Cams Under Hawaii Law
Hawaii state laws allow a driver to install a dashboard cam that is 5 to 7 inches square, installed in the top or bottom corners of the windshield. A driver can also install a dashboard cam on the dashboard or back window. Technically, a dashboard cam recording is made with the consent of at least one party in the video recording, the driver.
Surveillance Systems in Public Places
Hawaii’s state laws allow local and state governments to install security cameras in public places such as city parks. The surveillance cameras must be located in public places in which individuals would have no reasonable expectation of privacy, such as the exterior of bathrooms. The purpose of such security cameras is to deter vandalism and other criminal activity. The agencies which install such security cameras bear the responsibility of making sure the cameras’ view cannot be remotely adjusted and the cameras are not being aimed into private areas of bathroom facilities.
Convenience stores, gas stations and other retail businesses may also install security cameras inside stores and outside stores in parking lots to guard against criminal activity. For recordings made inside a store, the store employees are deemed to have consented to the recording. For a recording outside a store, a parking lot falls under the category of a public place. An outdoor security camera may be equipped with motion sensors to warn people who approach it.
Law Enforcement Officers and Recording Devices
Hawaii’s state laws do not prohibit a person from making a video or audio recording or taking a photograph of a law enforcement officer while the officer is performing their duties in a public place. The state’s laws also do not prohibit a person from making such recordings of a law enforcement officer under circumstances in which the officer has no reasonable expectation of privacy. The person must not interfere 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.
Body-Worn Cameras and Police
A municipal police department in Hawaii, such as the Honolulu Police Department, is allowed to use body-worn cameras (BWC) to document police interactions. In Honolulu, officers may use BWCs only to perform law enforcement functions. An officer is authorized to carry and use a BWC after successfully completing departmental BWC training. An officer is responsible for the proper care and use of their assigned BWC and related equipment.
At the beginning of each shift, an officer is required to inspect and test their BWC to ensure the unit is charged and functioning properly.
Consent to the Use of a BWC
An officer is not required to obtain the consent to record the parties with whom they are interacting. An officer must immediately activate a BWC in event mode before arriving at a scene to which they are responding or were dispatched. They must also activate a BWC in this mode when they initiate a law enforcement or investigative encounter, when activating their blue lights and/or siren, or when providing cover and/or possible assistance for responding to an event or encounter.
When there is a threat to the officer’s life or safety that makes immediately activating the BWC impossible or dangerous, the officer shall activate the BWC at the first reasonable opportunity. An officer should not deactivate a BWC until the call for service or encounter has fully concluded, but a supervisor may order a BWC to be deactivated. When a law enforcement officer makes an arrest and transports a suspect to a detention facility, they must keep the BWC activated until booking personnel take custody of the suspect.
Requesting Discontinuance of Use of a BWC
When an officer interacts with the victim of a crime, the officer may ask the victim if they want the officer to discontinue the use of the BWC. If the victim is a juvenile, the officer may ask a parent, guardian or other person legally responsible for the juvenile. If the victim or juvenile’s responsible party responds affirmatively, and the situation is nonconfrontational, the officer may deactivate the BWC.
When an officer interacts with a person seeking to anonymously report a crime or assist in an ongoing investigation, the officer may ask the person if they want the officer to discontinue use of the officer’s BWC. If the person responded affirmatively and the situation is nonconfrontational, the officer may deactivate the BWC.
If an officer fails to activate the BWC, the officer shall notify a supervisor immediately and document the issue in the incident report. If an officer decides to deactivate the BWC while at the scene of an investigation, they must state and record the reason with the BWC functioning before they deactivate the BWC. The officer must also document the reason in their incident report.
Requesting BWC Recordings
A public request for BWC recordings from the Honolulu Police Department must be referred to the office of the chief of the Honolulu Police Department within 24 hours of receipt. An agency such as the Honolulu Police Department may declare that release of BWC footage shall be considered only after the related investigation has been completed. An investigation may be deemed completed when all of the suspects have been charged or the local prosecutor’s office determines that it will not take action to prosecute defendants in the case.
The Honolulu Police Department’s rule not to release BWC until an investigation is complete may be in conflict with court cases that state an open investigation is not an adequate reason to withhold government records from the public. The Honolulu Police Department will respond to requests for BWC recordings in accordance with federal, state and local statutes, as well as departmental policy.
- 2021 Hawaii Revised Statutes: Section 711-1111, Violation of privacy in the second degree
- 2021 Hawaii Revised Statutes: Section 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
- 2021 Hawaii Revised Statutes: Section 701-107, Grades and classes of offenses
- 2021 Hawaii Revised Statutes: Section 706-640, Authorized fines
- 2021 Hawaii Revised Statutes: Section 706-663, Sentence of imprisonment for misdemeanor and petty misdemeanor
- 2021 Hawaii Revised Statutes: Section 711-1110.9, Violation of privacy in the first degree
- 2021 Hawaii Revised Statutes: Section 711-1100, Definitions
- 2021 Hawaii Revised Statutes: Section 803-48, Recovery of civil damages authorized
- Department of Customer Services, City and County of Honolulu: Partnership places 75 security cameras across four City park locations
- 2021 Hawaii Revised Statutes: Section 291-21.5, Regulation of motor vehicle sun screening devices; penalty
- KHON 2: What Is That New Security Device in the Walmart Parking Lot?
- Honolulu Police Department: Body-Worn Cameras
- Honolulu Civil Beat: HPD Reviewing New Bodycam Policy After Judge’s Ruling
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.