HOUSE OF REPRESENTATIVES

H.B. NO.

1632

TWENTY-EIGHTH LEGISLATURE, 2016

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to violation of privacy.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  The legislature finds that the Hawaii penal code does not adequately address situations in which technological advances have provided unique equipment that may be used 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 these devices have created concerns about a person's right to privacy in their own homes throughout the State.

     The purpose of this Act is to amend the offenses of violation of privacy in the first and second degree to address privacy concerns because of the use of unmanned aircraft systems.

     SECTION 2.  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 for observing, recording, amplifying, or broadcasting another person in a stage of undress or sexual activity in that place[; or], without the consent of the person or person entitled to privacy therein;

     (b)  The person knowingly installs or uses outside a private place any device or unmanned aircraft system for observing, recording, amplifying, or broadcasting another person in a stage of undress or sexual activity in that place that would not ordinarily be visible, audible, or comprehensible outside, without the consent of the person or persons entitled to privacy therein; or

    [(b)] (c)  The person knowingly discloses 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, financial condition, reputation, or personal relationships; 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 3.  Section 711-1111, Hawaii Revised Statutes, is amended by amending subsections (1) and (2) to read as follows:

     "(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;

     (c)  Trespasses on property for the sexual gratification of the actor;

     (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 for observing, recording, amplifying, or broadcasting sounds or events in that place other than another person in a stage of undress or sexual activity[;], without the consent of the person or persons entitled to privacy therein;

     (e)  Installs or uses outside a private place any device or unmanned aircraft system for observing, hearing, recording, amplifying, or broadcasting sounds or events occurring [originating] in that place which would not ordinarily be visible, 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, 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)  This section shall not apply to any dissemination, distribution, or transfer of images subject to this section by an electronic communication service provider or remote storage service in the ordinary course of its business.  For the purpose of this subsection:

     "Electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system.

     "Electronic communication service" means any service that provides to users thereof the ability to send or receive wire or electronic communications.

     "Electronic communication service provider" means any person engaged in the offering or sale of electronic communication services to the public.

     "Electronic communication system" means any wire, radio, electromagnetic, photo-optical, or photoelectronic facilities for the transmission of wire or electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications, including e-mail, web hosting, multimedia messaging services, and remote storage services offered by an electronic communication service provider.

     "Remote storage service" means the provision to the public of computer storage or processing services by means of an electronic communication system.

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

     SECTION 4.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 5.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 6.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Violation of Privacy; Unmanned Aircraft Systems

 

Description:

Amends the offenses of violation of privacy in the first and second degree to address privacy concerns because of the use of unmanned aircraft systems.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.