REPORT TITLE:
Wiretap.; Electronic Surv.


DESCRIPTION:
Conforms state wiretapping and electronic surveillance law to
federal law.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
HOUSE OF REPRESENTATIVES                H.B. NO.1501       
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT
RELATING TO WIRETAPPING AND ELECTRONIC SURVEILLANCE.



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

 1      SECTION 1.  Chapter 803, Hawaii Revised Statutes, is amended
 
 2 by adding a new part to be appropriately designated and to read
 
 3 as follows:
 
 4        "PART   .  WIRETAPPING AND ELECTRONIC SURVEILLANCE
 
 5                  Subpart A.  General Provisions
 
 6      803-A  Definitions.  As used in this part unless the
 
 7 context clearly requires otherwise:
 
 8      "Aggrieved person" means a person who was a party to any
 
 9 intercepted wire, oral, or electronic communication or a person
 
10 against whom the interception was directed.
 
11      "Aural transfer" means a transfer containing the human voice
 
12 at any point between and including the point of origin and the
 
13 point of reception.
 
14      "Bait vehicle" means any vehicle used by law enforcement to
 
15 further an investigation of and deter unauthorized entry into a
 
16 motor vehicle or unauthorized control of a propelled vehicle.
 
17      "Communication common carrier" means any person engaged as a
 
18 common carrier for hire, in interstate or foreign communication
 
19 by wire or radio or in intrastate, interstate, or foreign radio
 
20 transmission of energy, except where reference is made to
 

 
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 1 communication common carriers not subject to this part; but a
 
 2 person engaged in radio broadcasting, to the extent the person is
 
 3 so engaged, shall not be deemed a communication common carrier.
 
 4      "Contents", when used with respect to any wire, oral, or
 
 5 electronic communication, includes any information concerning the
 
 6 substance, purport, or meaning of that communication.
 
 7      "Designated judge" means a circuit court judge designated by
 
 8 the chief justice of the Hawaii supreme court to issue orders
 
 9 under this part.  If a circuit court judge has not been
 
10 designated by the chief justice or is unavailable, "designated
 
11 judge" shall include any circuit court judge or district court
 
12 judge.
 
13      "Electronic communication" means any transfer of signs,
 
14 signals, writing, images, sounds, data, or intelligence of any
 
15 nature transmitted in whole or in part by a wire, radio,
 
16 electromagnetic, photoelectronic, or photooptical system that
 
17 affects intrastate, interstate, or foreign commerce, but does not
 
18 include:
 
19      (1)  Any wire or oral communication;
 
20      (2)  Any communication made through a tone only paging
 
21           device;
 
22      (3)  Any communication from a tracking device; or
 
23      (4)  Electronic funds transfer information stored by a
 

 
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 1           financial institution in a communications system used
 
 2           for the electronic storage and transfer of funds.
 
 3      "Electronic communication service" means any service that
 
 4 provides to users thereof the ability to send or receive wire or
 
 5 electronic communications.
 
 6      "Electronic communication system" means any wire, radio,
 
 7 electromagnetic, photooptical, or photoelectronic facilities for
 
 8 the transmission of electronic communications and any computer
 
 9 facilities or related electronic equipment for the electronic
 
10 storage of these communications.
 
11      "Electronic, mechanical, or other device" means any device
 
12 or apparatus that can be used to intercept a wire, oral, or
 
13 electronic communication other than:
 
14      (1)  Any telephone or telegraph instrument, equipment, or
 
15           facility, or any component thereof:
 
16           (a)  Furnished to the subscriber or user by a provider
 
17                of wire or electronic communication service in the
 
18                ordinary course of its business and being used by
 
19                the subscriber or user in the ordinary course of
 
20                its business or furnished by the subscriber or
 
21                user for connection to the facilities of the
 
22                service and used in the ordinary course of its
 
23                business; or
 

 
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 1           (b)  Being used by a provider of wire or electronic
 
 2                communication service in the ordinary course of
 
 3                its business or by an investigative or law
 
 4                enforcement officer in the ordinary course of the
 
 5                officer's duties;
 
 6      (2)  A hearing aid or similar device being used to correct
 
 7           subnormal hearing to a level not better than normal.
 
 8      "Electronic storage" means:
 
 9      (1)  Any temporary, intermediate storage of a wire or
 
10           electronic communication incidental to the electronic
 
11           transmission thereof; and
 
12      (2)  Any storage of the communication by an electronic
 
13           communication service for purposes of backup protection
 
14           of the communication.
 
15      "Intercept" means the aural or other acquisition of the
 
16 contents of any wire, electronic, or oral communication through
 
17 the use of any electronic, mechanical, or other device.
 
18      "Investigative or law enforcement officer" means any officer
 
19 of the State or county or of the United States, who is empowered
 
20 by law to conduct investigations of or to make arrests for
 
21 offenses enumerated in this part.
 
22      "Oral communication" means any oral communication uttered by
 
23 a person exhibiting an expectation that the communication is not
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1 subject to interception under circumstances justifying the
 
 2 expectation, but the term does not include any electronic
 
 3 communication.
 
 4      "Organized crime" means any combination or conspiracy to
 
 5 engage in criminal activity.
 
 6      "Pen register" means a device that records or decodes
 
 7 electronic or other impulses that identify the numbers dialed or
 
 8 otherwise transmitted on the telephone line to which the device
 
 9 is attached, but the term does not include any device used by a
 
10 provider or customer of a wire or electronic communication
 
11 service for billing, or recording as an incident to billing, for
 
12 communications services provided by the provider or any device
 
13 used by a provider or customer of a wire communication service
 
14 for cost accounting or other similar purposes in the ordinary
 
15 course of its business.
 
16      "Person" means any employee or agent of the United States or
 
17 any state or county and any individual, partnership, association,
 
18 joint stock company, trust, or corporation.
 
19      "Readily accessible to the general public" means, with
 
20 respect to a radio communication, that the communication is not:
 
21      (1)  Scrambled or encrypted;
 
22      (2)  Transmitted using modulation techniques whose essential
 
23           parameters have been withheld from the public with the
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1           intention of preserving the privacy of the
 
 2           communication;
 
 3      (3)  Carried on a subcarrier or other signal subsidiary to a
 
 4           radio transmission;
 
 5      (4)  Transmitted over a communication system provided by a
 
 6           common carrier, unless the communication is a tone only
 
 7           paging system communication; or
 
 8      (5)  Transmitted on frequencies allocated under part 25,
 
 9           subpart D, E, or F of part 74, or part 94 of the Rules
 
10           of the Federal Communications Commission, unless, in
 
11           the case of a communication transmitted on a frequency
 
12           allocated under part 74 that is not exclusively
 
13           allocated to broadcast auxiliary services, the
 
14           communication is a two-way voice communication by
 
15           radio.
 
16      "Remote computing service" means the provision to the public
 
17 of computer storage or processing services by means of an
 
18 electronic communication system.
 
19      "Tracking device" means an electronic or mechanical device
 
20 that permits the tracking of the movement of a person or object,
 
21 but does not include such a device when installed:
 
22      (1)  In a motor vehicle or other vehicle by or with the
 
23           permission of the owner or person in lawful possession
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1           of the motor vehicle or other vehicle for the purpose
 
 2           of tracking the movement of the motor vehicle or other
 
 3           vehicle; or
 
 4      (2)  By or at the request of a police department or law
 
 5           enforcement agency in a bait vehicle.
 
 6      "Trap and trace device" means a device that captures the
 
 7 incoming electronic or other impulses that identify the
 
 8 originating number of an instrument or device from which a wire
 
 9 or electronic communication was transmitted.
 
10      "User" means any person or entity who:
 
11      (1)  Uses an electronic communication service; and
 
12      (2)  Is duly authorized by the provider of the service to
 
13           engage in such use.
 
14      "Wire communication" means any aural transfer made, in whole
 
15 or in part, through the use of facilities for the transmission of
 
16 communications by the aid of wire, cable, or other similar
 
17 connection between the point of origin and the point of reception
 
18 (including the use of such connection in a switching station)
 
19 furnished or operated by any person engaged in providing or
 
20 operating the facilities for the transmission of intrastate,
 
21 interstate, or foreign communications or communications affecting
 
22 intrastate, interstate, or foreign commerce.  The term "wire
 
23 communication" includes any electronic storage of the
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1 communication.
 
 2       Subpart B.  Wire, Oral, or Electronic Communications
 
 3      803-B  Interception and disclosure of wire, oral, or
 
 4 electronic communications prohibited; exceptions.(1)  Except as
 
 5 otherwise specifically provided in this part, any person who:
 
 6      (a)  Intentionally intercepts, endeavors to intercept, or
 
 7           procures any other person to intercept or endeavor to
 
 8           intercept any wire, oral, or electronic communication;
 
 9      (b)  Intentionally uses, endeavors to use, or procures any
 
10           other person to use or endeavor to use any electronic,
 
11           mechanical, or other device to intercept any oral
 
12           communication when:
 
13           (i)  The device is affixed to, or otherwise transmits a
 
14                signal through, a wire, cable, or other similar
 
15                connection used in wire communication;
 
16          (ii)  The device transmits communications by radio or
 
17                interferes with the transmission of the
 
18                communication;
 
19         (iii)  The person knows, or has reason to know, that the
 
20                device or any component thereof has been sent
 
21                through the mail or transported in interstate or
 
22                foreign commerce;
 
23          (iv)  The use or endeavor to use:
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1                (A)  Takes place on the premises of any business
 
 2                     or other commercial establishment, the
 
 3                     operations of which affect intrastate,
 
 4                     interstate, or foreign commerce; or
 
 5                (B)  Is obtained or is for the purpose of
 
 6                     obtaining information relating to the
 
 7                     operations of any business or other
 
 8                     commercial establishment, the operations of
 
 9                     which affect intrastate, interstate, or
 
10                     foreign commerce; or
 
11           (v)  The person acts in any part of the State of Hawaii
 
12                that is not included in any county;
 
13      (c)  Intentionally discloses, or endeavors to disclose, to
 
14           any other person the contents of any wire, oral, or
 
15           electronic communication, knowing or having reason to
 
16           know that the information was obtained through the
 
17           interception of a wire, oral, or electronic
 
18           communication in violation of this part;
 
19      (d)  Intentionally uses, or endeavors to use, the contents
 
20           of any wire, oral, or electronic communication, knowing
 
21           or having reason to know that the information was
 
22           obtained through the interception of a wire, oral, or
 
23           electronic communication in violation of this part; or
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1      (e)  (i)  Intentionally discloses, or endeavors to disclose,
 
 2                to any other person the contents of any wire,
 
 3                oral, or electronic communication, intercepted by
 
 4                means authorized by subsection (2)(a)(ii) or
 
 5                (2)(b) to (c) or section 803-F or 803-H;
 
 6          (ii)  Either knowing or having reason to know that the
 
 7                information was obtained through the interception
 
 8                of the communication in connection with a criminal
 
 9                investigation or having obtained or received the
 
10                information in connection with a criminal
 
11                investigation; and
 
12         (iii)  With intent to improperly obstruct, impede, or
 
13                interfere with a duly authorized criminal
 
14                investigation,
 
15 shall be punished as provided in subsection (4) or shall be
 
16 subject to suit as provided in subsection (5).
 
17      (2)  Exceptions:
 
18      (a)  (i)  It shall not be unlawful under this part for an
 
19                operator of a switchboard or an officer, employee,
 
20                or agent of a provider of wire or electronic
 
21                communication service, whose facilities are used
 
22                in the transmission of a wire or electronic
 
23                communication, to intercept, disclose, or use that
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1                communication in the normal course of employment
 
 2                while engaged in any activity that is a necessary
 
 3                incident to the rendition of the operator's,
 
 4                officer's, employee's, or agent's service, or to
 
 5                the protection of the rights or property of the
 
 6                provider of that service; provided that a provider
 
 7                of wire communication service to the public shall
 
 8                not utilize service observing or random
 
 9                monitoring, except for mechanical or service
 
10                quality control checks.
 
11          (ii)  Notwithstanding any other law to the contrary,
 
12                providers of wire or electronic communication
 
13                service and their officers, employees, and agents,
 
14                landlords, custodians, or other persons are
 
15                authorized to provide information, facilities, or
 
16                technical assistance to persons authorized by law
 
17                to intercept wire, oral, or electronic
 
18                communications or to conduct electronic
 
19                surveillance, if the provider or its officers,
 
20                employees, or agents, landlord, custodian, or
 
21                other specified person has been provided with:
 
22                (A)  A court order directing such assistance,
 
23                     signed by the designated judge; or
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1                (B)  A certification in writing, by a person
 
 2                     specified in section 803-H(7) or the Attorney
 
 3                     General of the United States, the Deputy
 
 4                     Attorney General of the United States, the
 
 5                     Associate Attorney General of the United
 
 6                     States, the attorney general of the State of
 
 7                     Hawaii, or the prosecuting attorney for a
 
 8                     county of the State of Hawaii, that no
 
 9                     warrant or court order is required by law,
 
10                     that all statutory requirements have been
 
11                     met, and that the specified assistance is
 
12                     required, setting forth the period of time
 
13                     during which the provision of the
 
14                     information, facilities, or technical
 
15                     assistance is authorized and specifying the
 
16                     information, facilities, or technical
 
17                     assistance required.
 
18           No provider of wire or electronic communication
 
19           service, officer, employee, or agent thereof, or
 
20           landlord, custodian, or other specified person shall
 
21           disclose the existence of any interception or
 
22           surveillance or the device used to accomplish the
 
23           interception or surveillance with respect to which the
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1           person has been furnished an order or certification
 
 2           under this subpart, except as may otherwise be required
 
 3           by legal process and then only after prior notification
 
 4           to the party that provided the court order or
 
 5           certification.  Any such disclosure shall render the
 
 6           person liable for the civil damages provided for in
 
 7           section 803-J.  No cause of action shall lie in an
 
 8           order against any provider of wire or electronic
 
 9           communication service or its officers, employees, or
 
10           agents, landlord, custodian, or other specified person
 
11           for providing information, facilities, or assistance in
 
12           accordance with the terms of a court order or
 
13           certification under this part.
 
14      (b)  It shall not be unlawful under this part for an
 
15           officer, employee, or agent of the Federal
 
16           Communications Commission, in the normal course of the
 
17           officer's, employee's, or agent's employment and in
 
18           discharge of the monitoring responsibilities exercised
 
19           by the Commission in the enforcement of chapter 5 of
 
20           title 47 of the United States Code, to intercept a wire
 
21           or electronic communication or oral communication
 
22           transmitted by radio or to disclose or use the
 
23           information thereby obtained.
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1      (c)  It shall not be unlawful under this part for a person
 
 2           acting under color of law to intercept a wire, oral, or
 
 3           electronic communication, when the person is a party to
 
 4           the communication or one of the parties to the
 
 5           communication has given prior consent to the
 
 6           interception.
 
 7      (d)  It shall not be unlawful under this part for a person
 
 8           not acting under color of law to intercept a wire,
 
 9           oral, or electronic communication, when the person is a
 
10           party to the communication or when one of the parties
 
11           to the communication has given prior consent to the
 
12           interception, unless the communication is intercepted
 
13           for the purpose of committing any criminal or tortious
 
14           act in violation of the Constitution or laws of the
 
15           United States or of this State.
 
16      (e)  It shall not be unlawful under this part:
 
17           (i)  For any person to intercept or access an
 
18                electronic communication made through an
 
19                electronic communication system that is configured
 
20                so that the electronic communication is readily
 
21                accessible to the general public;
 
22          (ii)  For any person to intercept any radio
 
23                communication that is transmitted:
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1                (A)  By any station for the use of the general
 
 2                     public or that relates to ships, aircraft,
 
 3                     vehicles, or persons in distress;
 
 4                (B)  By any governmental, law enforcement, civil
 
 5                     defense, private land mobile, or public
 
 6                     safety communications system, including
 
 7                     police and fire, readily accessible to the
 
 8                     general public;
 
 9                (C)  By a station operating on an authorized
 
10                     frequency within the bands allocated to the
 
11                     amateur, citizens band, or general mobile
 
12                     radio services; or
 
13                (D)  By any marine or aeronautical communications
 
14                     system;
 
15         (iii)  For any person to engage in any conduct that:
 
16                (A)  Is prohibited by section 633 of the
 
17                     Communications Act of 1934 (47 U.S.C. 553);
 
18                     or
 
19                (B)  Is excepted from the application of section
 
20                     705(a) of the Communications Act of 1934 by
 
21                     section 705(b) of that Act (47 U.S.C. 605);
 
22          (iv)  For any person to intercept any wire or electronic
 
23                communication the transmission of which is causing
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1                harmful interference to any lawfully operating
 
 2                station or consumer electronic equipment, to the
 
 3                extent necessary to identify the source of the
 
 4                interference; or
 
 5           (v)  For other users of the same frequency to intercept
 
 6                any radio communication made through a system that
 
 7                utilizes frequencies monitored by individuals
 
 8                engaged in the provision or the use of the system,
 
 9                if the communication is not scrambled or
 
10                encrypted.
 
11      (f)  It shall not be unlawful under this part:
 
12           (i)  To use a pen register or a trap and trace device
 
13                as those terms are defined in this part; or
 
14          (ii)  For a provider of electronic communication service
 
15                to record the fact that a wire or electronic
 
16                communication was initiated or completed in order
 
17                to protect the provider, another provider
 
18                furnishing service toward the completion of the
 
19                wire or electronic communication, or a user of
 
20                that service from fraudulent, unlawful, or abusive
 
21                use of the service.
 
22      (3)  (a) Except as provided in paragraph (b), a person or
 
23           entity providing an electronic communication service to
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1           the public shall not intentionally divulge the contents
 
 2           of any communication (other than a communication to the
 
 3           person or entity or an agent thereof) while in
 
 4           transmission on that service to any person or entity
 
 5           other than an addressee or intended recipient of the
 
 6           communication or an agent of the addressee or intended
 
 7           recipient.
 
 8      (b)  A person or entity providing electronic communication
 
 9           service to the public may divulge the contents of any
 
10           such communication:
 
11           (i)  As otherwise authorized in subsection (2)(a) or
 
12                section 803-G;
 
13          (ii)  With the lawful consent of the originator or any
 
14                addressee or intended recipient of the
 
15                communication;
 
16         (iii)  To a person employed or authorized, or whose
 
17                facilities are used, to forward the communication
 
18                to its destination; or
 
19          (iv)  That was inadvertently obtained by the service
 
20                provider and that appears to pertain to the
 
21                commission of a crime, if the divulgence is made
 
22                to a law enforcement agency.
 
23      (4)  (a)  Except as provided in paragraph (b) or in
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1           subsection (5), whoever violates subsection (1) shall
 
 2           be guilty of a class C felony.
 
 3      (b)  If the offense is a first offense under paragraph (a)
 
 4           and is not for a tortious or illegal purpose, or for
 
 5           purposes of direct or indirect commercial advantage or
 
 6           private commercial gain, and the wire or electronic
 
 7           communication with respect to which the offense under
 
 8           paragraph (a) is a radio communication that is not
 
 9           scrambled, encrypted, or transmitted using modulation
 
10           techniques, the essential parameters of which have been
 
11           withheld from the public with the intention of
 
12           preserving the privacy of such communication, then:
 
13           (i)  If the communication is not the radio portion of a
 
14                cellular telephone communication, a cordless
 
15                telephone communication that is transmitted
 
16                between the cordless telephone handset and the
 
17                base unit, a public land mobile radio service
 
18                communication or a paging service communication
 
19                and the conduct is not that described in
 
20                subsection (5), the offender shall be guilty of a
 
21                misdemeanor; or
 
22          (ii)  If the communication is the radio portion of a
 
23                cellular telephone communication, a cordless
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1                telephone communication that is transmitted
 
 2                between the cordless telephone handset and the
 
 3                base unit, a public land mobile radio service
 
 4                communication or a paging service communication,
 
 5                the offender shall be guilty of a petty
 
 6                misdemeanor.
 
 7      (c)  Conduct otherwise an offense under this subsection that
 
 8           consists of or relates to the interception of a
 
 9           satellite transmission that is not encrypted or
 
10           scrambled and that is transmitted:
 
11           (i)  To a broadcasting station for purposes of
 
12                retransmission to the general public; or
 
13          (ii)  As an audio subcarrier intended for redistribution
 
14                to facilities open to the public, but not
 
15                including data transmissions or telephone calls,
 
16                is not an offense under this subsection, unless
 
17                the conduct is for the purposes of direct or
 
18                indirect commercial advantage or private financial
 
19                gain.
 
20      (5)(a)(i)  If the communication is:
 
21                (A)  A private satellite video communication that
 
22                     is not scrambled or encrypted and the conduct
 
23                     in violation of this part is the private
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1                     viewing of that communication and is not for
 
 2                     a tortious or illegal purpose or for purposes
 
 3                     of direct or indirect commercial advantage or
 
 4                     private commercial gain; or
 
 5                (B)  A radio communication that is transmitted on
 
 6                     frequencies allocated under subpart D of part
 
 7                     74 of the rules of the Federal Communications
 
 8                     Commission that is not scrambled or encrypted
 
 9                     and the conduct in violation of this part is
 
10                     for tortious or illegal purpose or for
 
11                     purposes of direct or indirect commercial
 
12                     advantage or private commercial gain,
 
13                then the person who engages in such conduct shall
 
14                be subject to suit by the State.
 
15          (ii)  In an action under this subsection:
 
16                (A)  If the violation under this subpart is a
 
17                     first offense for the person under subsection
 
18                     (4)(a) and the person has not been found
 
19                     liable in a civil action under section 803-J,
 
20                     the State shall be entitled to appropriate
 
21                     injunctive relief; or
 
22                (B)  If the violation of this subpart is a second
 
23                     or subsequent offense under subsection (4)(a)
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1                     or the person has been found liable in any
 
 2                     prior civil action under section 803-J, the
 
 3                     person shall be subject to a mandatory $500
 
 4                     civil fine.
 
 5      (b)  The court may use any means within its authority to
 
 6           enforce an injunction issued under paragraph (a)(ii)
 
 7           and shall impose a civil fine of not less than $500 for
 
 8           each violation of the injunction.
 
 9      803-C  Manufacture, distribution, possession, and
 
10 advertising of wire, oral, or electronic communication
 
11 intercepting devices prohibited; exceptions.(1)  Except as
 
12 otherwise specifically provided in this part, any person who
 
13 intentionally:
 
14      (a)  Sends through the mail or sends or carries in
 
15           intrastate, interstate, or foreign commerce any
 
16           electronic, mechanical, or other device, knowing or
 
17           having reason to know that the design of the device
 
18           renders it primarily useful for the purpose of the
 
19           surreptitious interception of wire, oral, or electronic
 
20           communications;
 
21      (b)  Manufactures, assembles, possesses, or sells any
 
22           electronic, mechanical, or other device, knowing or
 
23           having reason to know that the design of the device
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1           renders it primarily useful for the purpose of the
 
 2           surreptitious interception of wire, oral, or electronic
 
 3           communications and that the device or any component
 
 4           thereof has been or will be sent through the mail or
 
 5           transported in intrastate, interstate, or foreign
 
 6           commerce; or
 
 7      (c)  Places in any newspaper, magazine, handbill, or other
 
 8           publication any advertisement of:
 
 9           (i)  Any electronic, mechanical, or other device,
 
10                knowing or having reason to know that the design
 
11                of the device renders it primarily useful for the
 
12                purpose of the surreptitious interception of wire,
 
13                oral, or electronic communications; or
 
14          (ii)  Any other electronic, mechanical, or other device,
 
15                where the advertisement promotes the use of the
 
16                device for the purpose of the surreptitious
 
17                interception of wire, oral, or electronic
 
18                communications,
 
19           knowing or having reason to know that the advertisement
 
20           will be sent through the mail or transported in
 
21           intrastate, interstate, or foreign commerce,
 
22 shall be guilty of a class C felony.
 
23      (2)  It shall not be unlawful under this section for:
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1      (a)  A provider of wire or electronic communication service
 
 2           or an officer, agent, or employee of, or a person under
 
 3           contract with, such a provider, in the normal course of
 
 4           the business of providing that wire or electronic
 
 5           communication service; or
 
 6      (b)  An officer, agent, or employee of, or a person under
 
 7           contract with, the State or a county, in the normal
 
 8           course of the activities of the State or a county; or
 
 9      (c)  A person acting under color of law
 
10 to send through the mail, send or carry in intrastate,
 
11 interstate, or foreign commerce, or manufacture, assemble,
 
12 possess, or sell any electronic, mechanical, or other device,
 
13 knowing or having reason to know that the design of the device
 
14 renders it primarily useful for the purpose of surreptitious
 
15 interception of wire, oral, or electronic communications.
 
16      803-D Confiscation of wire, oral, or electronic
 
17 communication intercepting devices.  Any electronic, mechanical,
 
18 or other device used, sent, carried, manufactured, assembled,
 
19 possessed, sold, or advertised, or otherwise distributed in
 
20 violation of this part shall be subject to seizure and forfeited
 
21 under chapter 712A.
 
22      803-E Prohibition of use as evidence of intercepted wire
 
23 or oral communications.  Unless found to be admissible under the
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1 doctrine of inevitable discovery, no part of the contents of any
 
 2 wire or oral communication and no evidence derived therefrom may
 
 3 be received in evidence in any trial, hearing, or other
 
 4 proceeding in or before any court, grand jury, department,
 
 5 officer, agency, regulatory body, legislative committee, or other
 
 6 authority of the State or a county, if the disclosure of that
 
 7 information would be in violation of this part.
 
 8      803-F  Authorization for interception of wire, oral, or
 
 9 electronic communications.  The attorney general, a designated
 
10 deputy attorney general in the attorney general's absence or
 
11 incapacity, the prosecuting attorney of each county, or a
 
12 designated deputy prosecuting attorney in the prosecuting
 
13 attorney's absence or incapacity, may authorize an application to
 
14 a designated judge for, and the judge may grant, in conformity
 
15 with section 803-H, an order authorizing or approving the
 
16 interception of wire or oral communications, by an investigative
 
17 or law enforcement officer or agency having responsibility for
 
18 the investigation of the offense as to which the application is
 
19 made, if the interception might provide or has provided evidence
 
20 of:
 
21      (a)  Murder;
 
22      (b)  Kidnapping;
 
23      (c)  Felony criminal property damage involving the danger of
 

 
Page 25                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1           serious bodily injury as defined in section 707-700;
 
 2      (d)  Organized crime;
 
 3      (e)  Extortion;
 
 4      (f)  Bribery of a juror, of a witness, or of a police
 
 5           officer;
 
 6      (g)  Receiving stolen property;
 
 7      (h)  Gambling;
 
 8      (i)  Distribution of dangerous, harmful, or detrimental
 
 9           drugs;
 
10      (j)  Money laundering;
 
11      (k)  Racketeering activity as defined in section 842-1;
 
12      (l)  Violations relating to firearms or explosives;
 
13      (m)  Any felony violations of section 803-B or 803-C;
 
14      (n)  Any conspiracy to commit any offense described in this
 
15           section; or
 
16      (o)  The location of any fugitive from justice charged with
 
17           an offense described in this section.
 
18      803-G  Authorization for disclosure and use of intercepted
 
19 wire, oral, or electronic communications.(1)  Any investigative
 
20 or law enforcement officer who, by any means authorized by this
 
21 part, has obtained knowledge of the contents of any wire, oral,
 
22 or electronic communication, or evidence derived therefrom, may
 
23 disclose the contents to another investigative or law enforcement
 

 
Page 26                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1 officer to the extent that the disclosure is appropriate to the
 
 2 proper performance of the official duties of the officer making
 
 3 or receiving the disclosure.
 
 4      (2)  Any investigative or law enforcement officer who, by
 
 5 any means authorized by this part, has obtained knowledge of the
 
 6 contents of any wire, oral, or electronic communication or
 
 7 evidence derived therefrom may use the contents to the extent the
 
 8 use is appropriate to the proper performance of the officer's
 
 9 official duties.
 
10      (3)  Any person who has received, by any means authorized by
 
11 this part, any information concerning a wire, oral, or electronic
 
12 communication, or evidence derived therefrom, intercepted in
 
13 accordance with this part, may disclose the contents of that
 
14 communication or any derivative evidence while giving testimony
 
15 under oath or affirmation in any proceeding in any court or
 
16 before the grand jury in this State.
 
17      (4)  No otherwise privileged wire, oral, or electronic
 
18 communication intercepted in accordance with, or in violation of,
 
19 this part shall lose its privileged character.
 
20      (5)  When an investigative or law enforcement officer, while
 
21 engaged in intercepting wire, oral, or electronic communications
 
22 in the manner authorized herein, intercepts wire, oral, or
 
23 electronic communications relating to offenses other than those
 

 
Page 27                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1 specified in the order of authorization or approval, the contents
 
 2 thereof and evidence derived therefrom may be disclosed or used
 
 3 as provided in subsections (1) and (2).  The contents and any
 
 4 evidence derived therefrom may be used under subsection (3) when
 
 5 authorized or approved by a designated judge, if the judge finds
 
 6 on subsequent application that the contents were otherwise
 
 7 intercepted in accordance with this part.  The application shall
 
 8 be made as soon as practicable.
 
 9      803-H  Procedure for interception of wire, oral, or
 
10 electronic communications; application; order; remedies.(1)
 
11 Each application for an order authorizing or approving the
 
12 interception of a wire, oral, or electronic communication under
 
13 this part shall be made in writing upon oath or affirmation to a
 
14 designated judge and shall be accompanied by a written memorandum
 
15 recommending approval or disapproval by the surveillance review
 
16 unit of the department of attorney general, as provided in
 
17 section 28-  .  The application shall state the applicant's
 
18 authority to make the application.  Each application shall
 
19 include the following information:
 
20      (a)  The identity of the investigative or law enforcement
 
21           officer making the application and the officer
 
22           authorizing the application;
 
23      (b)  A full and complete statement of the facts and
 

 
Page 28                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1           circumstances relied upon by the applicant, to justify
 
 2           the applicant's belief that an order should be issued,
 
 3           including:
 
 4           (i)  Details as to the particular offense that has
 
 5                been, is being, or is about to be committed;
 
 6          (ii)  Except as provided in subsection (11), a
 
 7                particular description of the nature and location
 
 8                of the facilities from which or the place where
 
 9                the communication is to be intercepted;
 
10         (iii)  A particular description of the type of
 
11                communications sought to be intercepted; and
 
12          (iv)  The identity of the person, if known, committing
 
13                the offense and whose communications are to be
 
14                intercepted;
 
15      (c)  A full and complete statement as to whether other
 
16           investigative procedures have been tried and failed or
 
17           why they reasonably appear to be either unlikely to
 
18           succeed if tried or too dangerous;
 
19      (d)  A statement of the period of time for which the
 
20           interception is required to be maintained; or if the
 
21           nature of the investigation is such that the
 
22           authorization for interception should not automatically
 
23           terminate when the described type of communication has
 

 
Page 29                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1           been first obtained, a particular description of facts
 
 2           establishing probable cause to believe that additional
 
 3           communications of the same type will occur thereafter;
 
 4      (e)  A full and complete statement of the facts concerning
 
 5           all previous applications known to the individual
 
 6           authorizing and making the application, made to any
 
 7           judge for authorization to intercept, or for approval
 
 8           of interceptions of, wire, oral, or electronic
 
 9           communications involving any of the same persons,
 
10           facilities, or places specified in the application, and
 
11           the action taken by the judge on each application; and
 
12      (f)  When the application is for the extension of an order,
 
13           a statement setting forth the results thus far obtained
 
14           from the interception or a reasonable explanation of
 
15           the failure to obtain any results.
 
16      (2)  The designated judge may require the applicant to
 
17 furnish additional testimony or documentary evidence in support
 
18 of the application.
 
19      (3)  Upon such application, the designated judge may enter
 
20 an ex parte order, as requested or as modified, authorizing or
 
21 approving interception of wire, oral, or electronic
 
22 communications, if the designated judge determines on the basis
 
23 of the facts submitted by the applicant that:
 

 
Page 30                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1      (a)  There is probable cause for belief that a person is
 
 2           committing, has committed, or is about to commit a
 
 3           particular offense enumerated in section 803-F;
 
 4      (b)  There is probable cause for belief that particular
 
 5           communications concerning that offense will be obtained
 
 6           through the interception;
 
 7      (c)  Normal investigative procedures have been tried and
 
 8           have failed or reasonably appear to be either unlikely
 
 9           to succeed if tried or to be too dangerous; and
 
10      (d)  Except as provided in subsection (11), there is
 
11           probable cause for belief that the facilities from
 
12           which or the place where the wire, oral, or electronic
 
13           communications are to be intercepted are being used, or
 
14           are about to be used, in connection with the commission
 
15           of such offense or are leased to, listed in the name
 
16           of, or commonly used by such person.
 
17      (4)  Each order authorizing or approving the interception of
 
18 any wire, oral, or electronic communication under this part shall
 
19 specify:
 
20      (a)  The identify of the person, if known, whose
 
21           communications are to be intercepted;
 
22      (b)  The nature and location of the communications
 
23           facilities as to which or the place where authority to
 

 
Page 31                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1           intercept is granted;
 
 2      (c)  A particular description of the type of communication
 
 3           sought to be intercepted and a statement of the
 
 4           particular offense to which it relates;
 
 5      (d)  The identity of the agency authorized to intercept the
 
 6           communications and of the person authorizing the
 
 7           application; and
 
 8      (e)  The period of time during which the interception is
 
 9           authorized, including a statement as to whether the
 
10           interception is to terminate automatically upon the
 
11           described communication first being obtained.
 
12      Upon request of the applicant, an order authorizing the
 
13 interception of a wire, oral, or electronic communication under
 
14 this subpart shall direct that a provider of wire or electronic
 
15 communication service, landlord, custodian, or other person shall
 
16 furnish the applicant forthwith all information, facilities, and
 
17 technical assistance necessary to accomplish the interception
 
18 unobtrusively and with a minimum of interference with the
 
19 services that the service provider, landlord, custodian, or
 
20 person is according the person whose communications are to be
 
21 intercepted.  Any provider of wire or electronic communication
 
22 service, landlord, custodian, or other person furnishing the
 
23 facilities or technical assistance shall be compensated therefor
 

 
Page 32                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1 by the applicant for reasonable expenses incurred in providing
 
 2 the facilities or assistance.
 
 3      (5)  No order entered under this section shall authorize or
 
 4 approve the interception of any wire, oral, or electronic
 
 5 communication for any period longer than is necessary to achieve
 
 6 the objective of the authorization, nor in any event longer than
 
 7 thirty days.  The thirty-day period begins on the earlier of the
 
 8 day on which the investigative or law enforcement officer first
 
 9 begins to conduct an interception under the order or ten days
 
10 after the order is entered.  Extensions of an order may be
 
11 granted, but only upon application for an extension made in
 
12 accordance with subsection (1) and the court making the findings
 
13 required by subsection (3).  The period of extension shall be no
 
14 longer than the authorizing judge deems necessary to achieve the
 
15 purposes for which it was granted and in no event for longer than
 
16 thirty days.  Every order and extension thereof shall contain a
 
17 provision that the authorization to intercept shall be executed
 
18 as soon as practicable, shall be conducted in such a way as to
 
19 minimize the interception of communications not otherwise subject
 
20 to interception under this part, and shall terminate upon
 
21 attainment of the authorized objective, or in any event in thirty
 
22 days.  In the event the intercepted communication is in a code or
 
23 foreign language, and an expert in that foreign language or code
 

 
Page 33                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1 is not reasonably available during the interception period,
 
 2 minimization may be accomplished as soon as practicable after the
 
 3 interception.
 
 4      An interception under this part may be conducted, in whole
 
 5 or in part, by investigative or law enforcement officers or by an
 
 6 individual operating under a contract with the State or a county,
 
 7 acting under the supervision of an investigative or law
 
 8 enforcement officer authorized to conduct the interception.
 
 9      (6)  Whenever an order authorizing interception is entered
 
10 pursuant to this part, the order may require reports to be made
 
11 to the judge who issued the order showing what progress has been
 
12 made toward achievement of the authorized objective and the need
 
13 for continued interception.  The reports shall be made at such
 
14 intervals as the judge may require.
 
15      (7)  Notwithstanding any other provision of this part to the
 
16 contrary, any investigative or law enforcement officer, specially
 
17 designated by the attorney general or the prosecuting attorney
 
18 for a county of this State, who reasonably determines that:
 
19      (a)  An emergency situation exists that involves:
 
20           (i)  Immediate danger of death or serious physical
 
21                injury to any person; or
 
22          (ii)  Conspiratorial activities characteristic of
 
23                organized crime;
 

 
Page 34                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1           and that requires a wire, oral, or electronic
 
 2           communication to be intercepted before an order
 
 3           authorizing the interception can, with due diligence,
 
 4           be obtained; and
 
 5      (b)  There are grounds upon which an order could be entered
 
 6           under this part to authorize the interception,
 
 7 may intercept the wire, oral, or electronic communication if an
 
 8 application for an order approving the interception is made in
 
 9 accordance with this section within forty-eight hours after the
 
10 interception has occurred or begins to occur.  In the absence of
 
11 an order, the interception shall terminate immediately once the
 
12 communication sought is obtained or when the application for the
 
13 order is denied, whichever is earlier.  In the event the
 
14 application for approval is denied, or in any other case in which
 
15 the interception is terminated without an order having been
 
16 issued, the contents of any wire, oral, or electronic
 
17 communication intercepted shall be treated as having been
 
18 obtained in violation of this part, and an inventory shall be
 
19 served as provided for in subsection (8)(d) on the person named
 
20 in the application.
 
21      (8)  (a)  The contents of any wire, oral, or electronic
 
22           communication intercepted by any means authorized by
 
23           this part shall be recorded on tape or wire or other
 

 
Page 35                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1           comparable device, if possible.  The recording of the
 
 2           contents of any wire, oral, or electronic communication
 
 3           under this subsection shall be done in such way as will
 
 4           protect the recording from editing or other
 
 5           alterations.  Immediately upon the expiration of the
 
 6           period of the order, or extensions thereof, the
 
 7           recording shall be made available to the judge issuing
 
 8           the order and sealed under the judge's directions.
 
 9           Custody of the recording shall be wherever the judge
 
10           orders.  Recordings shall not be destroyed, except upon
 
11           an order of the issuing or denying judge, and, in any
 
12           event, shall be kept for ten years.  Duplicate
 
13           recordings may be made for use or disclosure pursuant
 
14           to section 803-G(1) and (2) for investigations.  The
 
15           presence of the seal provided for by this subsection,
 
16           or a satisfactory explanation for the absence thereof,
 
17           shall be a prerequisite for the use or disclosure of
 
18           the contents of any wire, oral, or electronic
 
19           communication or evidence derived therefrom under
 
20           section 803-G(3).
 
21      (b)  Applications made and orders granted under this part
 
22           shall be sealed by the judge.  Custody of the
 
23           applications and orders shall be wherever the judge
 

 
Page 36                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1           directs.  Applications and orders shall be disclosed
 
 2           only upon a showing of good cause before a designated
 
 3           judge, shall not be destroyed, except on order of the
 
 4           issuing or denying judge, and, in any event, shall be
 
 5           kept for ten years.
 
 6      (c)  Any violation of this subsection may be punished as
 
 7           contempt of the issuing or denying judge.
 
 8      (d)  Within a reasonable time but not later than ninety days
 
 9           after either the filing of an application for an order
 
10           of approval under subsection (7) that is denied or the
 
11           termination of the period of an order or extensions
 
12           thereof, the issuing or denying judge shall cause to be
 
13           served, on the persons named in the order or the
 
14           application and any other parties to intercepted
 
15           communications as the judge may determine, in the
 
16           judge's discretion, is in the interest of justice, an
 
17           inventory which shall include notice of:
 
18           (i)  The fact of the entry of the order or the
 
19                application;
 
20          (ii)  The date of the entry and the period of
 
21                authorized, approved, or disapproved interception,
 
22                or the denial of the application; and
 
23         (iii)  The fact that during the period wire, oral, or
 

 
Page 37                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1                electronic communications were or were not
 
 2                intercepted.
 
 3           The judge, upon the filing of a motion and in the
 
 4           judge's discretion, may make available to the person or
 
 5           the person's counsel for inspection those portions of
 
 6           the intercepted communications, applications, and
 
 7           orders as the judge determines to be in the interest of
 
 8           justice.  On an ex parte showing of good cause to a
 
 9           designated judge, the judge may permit the serving of
 
10           the inventory required by this subsection to be
 
11           postponed.
 
12      (9)  The contents of any wire, oral, or electronic
 
13 communication intercepted pursuant to this part or evidence
 
14 derived therefrom shall not be received in evidence or otherwise
 
15 disclosed in any trial, hearing, or other proceeding in a court
 
16 of this State, unless each party, not less than ten days before
 
17 the trial, hearing, or proceeding, has been furnished with a copy
 
18 of the court order and accompanying application under which the
 
19 interception was authorized or approved.  This ten-day period may
 
20 be waived by the judge upon a finding that it was not possible to
 
21 furnish the party with the above information ten days before the
 
22 trial, hearing, or proceeding and that the party will not be
 
23 prejudiced by the delay in receiving the information.
 

 
Page 38                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1      (10) (a)  Any aggrieved person in any trial, hearing, or
 
 2           proceeding in or before any court, department, officer,
 
 3           agency, regulatory body, or other authority of the
 
 4           State or a county may move to suppress the contents of
 
 5           any wire or oral communication intercepted pursuant to
 
 6           this part, or evidence derived therefrom, on the
 
 7           grounds that:
 
 8           (i)  The communication was unlawfully intercepted;
 
 9          (ii)  The order of authorization or approval under which
 
10                it was intercepted is insufficient on its face; or
 
11         (iii)  The interception was not made in conformity with
 
12                the order of authority or approval.
 
13           The motion shall be made before the trial, hearing, or
 
14           proceeding, unless there was no opportunity to make the
 
15           motion or the person was not aware of the grounds of
 
16           the motion.  If the motion is granted, the contents of
 
17           the intercepted wire or oral communication, or evidence
 
18           derived therefrom, shall be treated as having been
 
19           obtained in violation of this part.  The judge, upon
 
20           the filing of a motion by the aggrieved person, may
 
21           make available to the aggrieved person or the aggrieved
 
22           person's counsel for inspection those portions of the
 
23           intercepted communication, or evidence derived
 

 
Page 39                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1           therefrom, as the judge determines to be in the
 
 2           interests of justice.
 
 3      (b)  In addition to any other right to appeal, the State
 
 4           shall have the right to appeal from an order granting a
 
 5           motion to suppress made under paragraph (a) or the
 
 6           denial of an application for an order of approval, if
 
 7           the attorney general or the prosecuting attorney of a
 
 8           county of the State or their designated representatives
 
 9           certify to the judge or other official granting the
 
10           motion or denying the application that the appeal is
 
11           not taken for purposes of delay.  The appeal shall be
 
12           taken within thirty days after the date the order was
 
13           entered and shall be diligently prosecuted.  If the
 
14           appeal is from an order denying an application for an
 
15           order of authorization or approval, the appeal shall be
 
16           in camera and in preference to all other pending
 
17           appeals in accordance with rules adopted by the supreme
 
18           court.
 
19      (c)  The remedies and sanctions described in this part with
 
20           respect to the interception of electronic
 
21           communications are the only judicial remedies and
 
22           sanctions for nonconstitutional violations of this part
 
23           involving such communications.
 

 
Page 40                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1      (11)  The requirements of subsections (1)(b)(ii) and (3)(d)
 
 2 relating to the specification of the facilities from which, or
 
 3 the place where, the communication is to be intercepted do not
 
 4 apply if:
 
 5      (a)  In the case of an application with respect to the
 
 6           interception of an oral communication:
 
 7           (i)  The application is by an investigative or law
 
 8                enforcement officer and is approved by the
 
 9                attorney general or a prosecuting attorney for a
 
10                county of the State;
 
11          (ii)  The application contains a full and complete
 
12                statement as to why the specification is not
 
13                practical and identifies the person committing the
 
14                offense and whose communications are to be
 
15                intercepted; and
 
16         (iii)  The judge finds that the specification is not
 
17                practical; or
 
18      (b)  In the case of an application with respect to a wire or
 
19           electronic communication:
 
20           (i)  The application is by an investigative or law
 
21                enforcement officer and is approved by the
 
22                attorney general or a prosecuting attorney for a
 
23                county of the State;
 

 
Page 41                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1          (ii)  The application identifies the person believed to
 
 2                be committing the offense and whose communications
 
 3                are to be intercepted and the applicant makes a
 
 4                showing of a purpose, on the part of that person,
 
 5                to thwart interception by changing facilities; and
 
 6         (iii)  The judge finds that the purpose has been
 
 7                adequately shown.
 
 8      (12)  An interception of a communication under an order with
 
 9 respect to which the requirements of subsections (1)(b)(ii) and
 
10 (3)(d) do not apply by reason of subsection (11) shall not begin
 
11 until the facilities from which, or the place where, the
 
12 communication is to be intercepted is ascertained by the person
 
13 implementing the interception order.  A provider of wire or
 
14 electronic communications service that has received an order as
 
15 provided for in subsection (11)(b) may move the court to modify
 
16 or quash the order on the ground that its assistance with respect
 
17 to the interception cannot be performed in a timely or reasonable
 
18 fashion.  The court, upon notice to the State, shall decide the
 
19 motion expeditiously.
 
20      803-I  Reports concerning intercepted wire, oral, or
 
21 electronic communications.(1)  Within thirty days after either
 
22 the expiration of an order or each extension thereof entered
 
23 under section 803-H, or the denial of an order approving an
 

 
Page 42                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1 interception, the issuing or denying judge shall report to the
 
 2 administrative director of the courts:
 
 3      (a)  The fact that an order or extension was applied for;
 
 4      (b)  The kind of order or extension applied for, including
 
 5           whether the order was an order with respect to which
 
 6           the requirements of section 803-H(1)(b)(ii) and
 
 7           803-H(3)(d) did not apply by reason of section
 
 8           803-H(11);
 
 9      (c)  The fact that the order or extension was granted as
 
10           applied for, was modified, or was denied;
 
11      (d)  The period of interceptions authorized by the order and
 
12           the number and duration of any extensions of the order;
 
13      (e)  The offense specified in the order or application, or
 
14           extension of an order;
 
15      (f)  The identity of the applying investigative or law
 
16           enforcement officer and agency making the application
 
17           and the person authorizing the application; and
 
18      (g)  The nature of the facilities from which or the place
 
19           where communications were to be intercepted.
 
20      (2)  By January 1 of each year, the attorney general and the
 
21 county prosecutors shall report to the administrative director of
 
22 the courts:
 
23      (a)  The information required by subsection (1) with respect
 

 
Page 43                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1           to each application for an order or extension made
 
 2           during the preceding calendar year;
 
 3      (b)  A general description of the interceptions made under
 
 4           the order or extension, including:
 
 5           (i)  The approximate nature and frequency of
 
 6                incriminating communications intercepted;
 
 7          (ii)  The approximate nature and frequency of other
 
 8                communications intercepted;
 
 9         (iii)  The approximate number of persons whose
 
10                communications were intercepted; and
 
11          (iv)  The approximate nature, amount, and cost of the
 
12                personnel and other resources used in the
 
13                interceptions;
 
14      (c)  The number of arrests resulting from interceptions made
 
15           under an order or extension, and the offenses for which
 
16           the arrests were made;
 
17      (d)  The number of trials resulting from the interceptions;
 
18      (e)  The number of motions to suppress made with respect to
 
19           the interceptions and the number granted or denied;
 
20      (f)  The number of convictions resulting from the
 
21           interceptions and the offenses for which the
 
22           convictions were obtained and a general assessment of
 
23           the importance of the interceptions;
 

 
Page 44                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1      (g)  The information required by paragraphs (b) through (f)
 
 2           with respect to orders or extensions obtained in a
 
 3           preceding calendar year; and
 
 4      (h)  Other information required by the office of the
 
 5           administrative director of the courts.
 
 6      (3)  In March of each year, the administrative director of
 
 7 the courts shall transmit to the legislature a full and complete
 
 8 report concerning the number of applications for orders
 
 9 authorizing or approving the interception of wire, oral, or
 
10 electronic communications pursuant to this part and the number of
 
11 orders and extensions granted or denied pursuant to this part
 
12 during the preceding calendar year.  The report shall include a
 
13 summary and analysis of the data required to be filed with the
 
14 administrative director of the courts by subsections (1) and (2).
 
15 The administrative director of the courts may issue binding
 
16 guidelines dealing with the content and form of the reports
 
17 required to be filed by subsections (1) and (2).
 
18      803-J Recovery of civil damages authorized.  (1)  Except
 
19 as provided in section 803-B(2)(a)(ii), any person whose wire,
 
20 oral, or electronic communication is intercepted, disclosed, or
 
21 intentionally used in violation of this subpart, may recover in a
 
22 civil action such relief as may be appropriate from the person or
 
23 entity that engaged in the violation.
 

 
Page 45                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1      (2)  In an action under this section, appropriate relief
 
 2 includes:
 
 3      (a)  Preliminary and other equitable or declaratory relief
 
 4           as may be appropriate;
 
 5      (b)  Damages under subsection (3) and punitive damages in
 
 6           appropriate cases; and
 
 7      (c)  A reasonable attorney's fee and other litigation costs
 
 8           reasonably incurred.
 
 9      (3)  (a)  In an action under this section, if the conduct in
 
10           violation of this subpart is the private viewing of a
 
11           private satellite video communication that is not
 
12           scrambled or encrypted or if the communication is a
 
13           radio communication that is transmitted on frequencies
 
14           allocated under subpart D of part 74 of the rules of
 
15           the Federal Communications Commission that is not
 
16           scrambled or encrypted and the conduct is not for a
 
17           tortious or illegal purpose or for purposes of direct
 
18           or indirect commercial advantage or private commercial
 
19           gain, then the court shall assess the damages as
 
20           follows:
 
21           (i)  If the person who engaged in that conduct has not
 
22                previously been enjoined under section 803-B(5)
 
23                and has not been found liable in a prior civil
 

 
Page 46                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1                action under this section, the court shall assess
 
 2                the greater of the sum of actual damages suffered
 
 3                by the plaintiff or statutory damages of not less
 
 4                than $50 and not more than $500; or
 
 5          (ii)  If, on one prior occasion, the person who engaged
 
 6                in that conduct has been enjoined under section
 
 7                803-B(5) or has been found liable in a civil
 
 8                action under this section, the court shall assess
 
 9                the greater of the sum of actual damages suffered
 
10                by the plaintiff or statutory damages of not less
 
11                than $100 and not more than $1,000.
 
12      (b)  In any other action under this section, the court may
 
13           assess as damages whichever is the greater of:
 
14           (i)  The sum of the actual damages suffered by the
 
15                plaintiff and any profits made by the violator as
 
16                a result of the violation; or
 
17          (ii)  Statutory damages of whichever is the greater of
 
18                $100 a day for each day of violation or $10,000.
 
19      (4)  A good faith reliance on:
 
20      (a)  A court warrant or order, a grand jury subpoena, a
 
21           legislative authorization, or a statutory
 
22           authorization;
 
23      (b)  A request of an investigative or law enforcement
 

 
Page 47                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1           officer under section 803-H(7); or
 
 2      (c)  A good faith determination that section 803-B(3)
 
 3           permitted the conduct complained of;
 
 4 is a complete defense against any civil or criminal action
 
 5 brought under this part or any other law.
 
 6      (5)  A civil action under this section shall not be
 
 7 commenced later than two years after the date upon which the
 
 8 claimant first has a reasonable opportunity to discover the
 
 9 violation.
 
10      803-K  Injunction against illegal interception.  Whenever
 
11 it appears that any person is engaged or is about to engage in
 
12 any act that constitutes or will constitute a felony violation of
 
13 this part, the attorney general may initiate a civil action in a
 
14 circuit court of this State to enjoin the violation.  The court
 
15 shall proceed as soon as practicable to the hearing and
 
16 determination of the action, and at any time before final
 
17 determination, may enter a restraining order or prohibition or
 
18 take any other action as is warranted to prevent a continuing and
 
19 substantial injury to the State or to any person or class of
 
20 persons for whose protection the action is brought.  A proceeding
 
21 under this section is governed by the Hawaii rules of civil
 
22 procedure; except that, if an indictment, information, or
 
23 criminal complaint has been returned against the respondent,
 

 
Page 48                                                    
                                     H.B. NO.1501       
                                                        
                                                        

 
 1 discovery is governed by the Hawaii rules of penal procedure.
 
 2                 Subpart C.  Stored Communications
 
 3      803-L Unlawful access to stored communications.  (1)
 
 4 Except as provided in subsection (3), whoever:
 
 5      (a)  Intentionally accesses without authorization a facility
 
 6           through which an electronic communication service is
 
 7           provided; or
 
 8      (b)  Intentionally exceeds an authorization to access that
 
 9           facility; and
 
10 thereby obtains, alters, or prevents authorized access to a wire
 
11 or electronic communication, while it is in electronic storage in
 
12 the system, shall be punished as provided in subsection (2).
 
13      (2)  (a)  A violation of subsection (1) committed for
 
14           purposes of commercial advantage, malicious destruction
 
15           or damage, or private commercial gain shall be:
 
16           (i)  A misdemeanor, if a first offense; or
 
17          (ii)  A class C felony, for all subsequent offenses.
 
18      (b)  All other violations of subsection (1) shall be a
 
19           misdemeanor.
 
20      (3)  Subsections (1) and (2) do not apply with respect to
 
21 conduct authorized:
 
22      (a)  By the person or entity providing a wire or electronic
 
23           communications service;
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1      (b)  By a user of that service with respect to a
 
 2           communication of or intended for that user; or
 
 3      (c)  In sections 803-H, 803-N, or 803-O.
 
 4      803-M Disclosure of contents.(1)  Except as provided in
 
 5 subsection (2):
 
 6      (a)  A person or entity providing an electronic
 
 7           communication service to the public shall not knowingly
 
 8           divulge to any person or entity the contents of a
 
 9           communication while in electronic storage by that
 
10           service; and
 
11      (b)  A person or entity providing remote computing service
 
12           to the public shall not knowingly divulge to any person
 
13           or entity the contents of any communication that is
 
14           carried or maintained on that service:
 
15           (i)  On behalf of, and received by means of electronic
 
16                transmission from (or created by means of computer
 
17                processing of communications received by means of
 
18                electronic transmission from), a subscriber or
 
19                customer of the service; and
 
20          (ii)  Solely for the purpose of providing storage or
 
21                computer processing services to the subscriber or
 
22                customer, if the provider is not authorized to
 
23                access the contents of those communications for
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1                purposes of providing any services other than
 
 2                storage or computer processing.
 
 3      (2)  A person or entity may divulge the contents of a
 
 4 communication:
 
 5      (a)  To an addressee or intended recipient of the
 
 6           communication or an agent of the addressee or intended
 
 7           recipient;
 
 8      (b)  As otherwise authorized in section 803-B(2)(a), 803-G,
 
 9           or 803-N;
 
10      (c)  With the lawful consent of the originator or an
 
11           addressee of intended recipient of the communication,
 
12           or the subscriber in the case of remote computer
 
13           service;
 
14      (d)  To a person employed or authorized or whose facilities
 
15           are used to forward the communication to its
 
16           destination;
 
17      (e)  As may be necessarily incident to the rendition of the
 
18           service or to the protection of the rights or property
 
19           of the provider of that service; or
 
20      (f)  To a law enforcement agency if the contents:
 
21           (i)  Were inadvertently obtained by the service
 
22                provider; and
 
23          (ii)  Appear to pertain to the commission of a crime.
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1      803-N Requirements for governmental access.(1)  A
 
 2 governmental entity may require the disclosure by a provider of
 
 3 electronic communication service of the contents of an electronic
 
 4 communication that is in electronic storage in an electronic
 
 5 communications system for one hundred and eighty days or less,
 
 6 only pursuant to a warrant.  A governmental entity may require
 
 7 the disclosure by a provider of electronic communications
 
 8 services of the contents of an electronic communication that has
 
 9 been in electronic storage in an electronic communications system
 
10 for more than one hundred and eighty days by the means available
 
11 under subsection (2).
 
12      (2)  (a)  A governmental entity may require a provider of
 
13           remote computing service to disclose the contents of
 
14           any electronic communication to which this paragraph is
 
15           made applicable by paragraph (b):
 
16           (i)  Without required notice to the subscriber or
 
17                customer, if the governmental entity obtains a
 
18                warrant; or
 
19          (ii)  With prior notice from the governmental entity to
 
20                the subscriber or customer, if the governmental
 
21                entity:
 
22                (A)  Uses an administrative subpoena authorized by
 
23                     statute or a grand jury or trial subpoena; or
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1                (B)  Obtains a court order for the disclosure
 
 2                     under subsection (4);
 
 3           except that delayed notice may be given pursuant to
 
 4           section 803-P.
 
 5      (b)  Paragraph (a) applies with respect to any electronic
 
 6           communication that is held or maintained on that
 
 7           service:
 
 8           (i)  On behalf of, and received by means of electronic
 
 9                transmission from (or created by means of computer
 
10                processing of communications received by means of
 
11                electronic transmission from), a subscriber or
 
12                customer of the remote computing service; and
 
13          (ii)  Solely for the purpose of providing storage or
 
14                computer processing services to the subscriber or
 
15                customer, if the provider is not authorized to
 
16                access the contents of those communications for
 
17                purposes of providing any services other than
 
18                storage or computer processing.
 
19      (3)  (a)  (i)  Except as provided in subparagraph (ii), a
 
20                provider of electronic communication service or
 
21                remote computing service may disclose a record or
 
22                other information pertaining to a subscriber to or
 
23                customer of the service (not including the
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1                contents of communications covered by subsection
 
 2                (1) or (2)) to any person other than a
 
 3                governmental entity.
 
 4          (ii)  A provider of electronic communication service or
 
 5                remote computing service shall disclose a record
 
 6                or other information pertaining to a subscriber to
 
 7                or customer of the service (not including the
 
 8                contents of communications covered by subsection
 
 9                (1) or (2)) to a governmental entity only when the
 
10                governmental entity:
 
11                (A)  Obtains a warrant;
 
12                (B)  Obtains a court order for the disclosure
 
13                     under subsection (4); or
 
14                (C)  Has the consent of the subscriber or customer
 
15                     to the disclosure.
 
16         (iii)  A provider of electronic communication service or
 
17                remote computing service shall disclose to a
 
18                governmental entity the name, address, local and
 
19                long distance telephone toll billing records,
 
20                telephone number or other subscriber number or
 
21                identity, and length of service of a subscriber to
 
22                or customer of the service and the types of
 
23                services the subscriber or customer utilized, when
 

 
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 1                the governmental entity uses an administrative
 
 2                subpoena authorized by statute or a grand jury or
 
 3                trial subpoena or any means available under
 
 4                subparagraph (ii).
 
 5      (b)  A governmental entity receiving records or information
 
 6           under this subsection is not required to provide notice
 
 7           to a subscriber or customer.
 
 8      (4)  A court order for disclosure under subsection (2) or
 
 9 (3) may be issued by a designated judge and shall issue only if
 
10 the governmental entity offers specific and articulable facts
 
11 showing that there are reasonable grounds to believe that the
 
12 contents of a wire or electronic communication, or the records or
 
13 other information sought, are relevant and material to an ongoing
 
14 criminal investigation.  A court issuing an order pursuant to
 
15 this section, on a motion made promptly by the service provider,
 
16 may quash or modify the order if the information or records
 
17 requested are unusually voluminous in nature or compliance with
 
18 the order otherwise would cause an undue burden on the provider.
 
19      (5)  No cause of action shall lie in any court against any
 
20 provider of wire or electronic communication service, its
 
21 officers, employees, agents, or other specified persons for
 
22 providing information, facilities, or assistance in accordance
 
23 with the terms of a court order, warrant, subpoena, or
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1 certification under this subpart.
 
 2      (6)  (a)  A provider of wire or electronic communication
 
 3           services or a remote computing service, upon the
 
 4           request of a governmental entity, shall take all
 
 5           necessary steps to preserve records and other evidence
 
 6           in its possession pending the issuance of a court order
 
 7           or other process.
 
 8      (b)  Records referred to in paragraph (a) shall be retained
 
 9           for a period of ninety days, which shall be extended
 
10           for an additional ninety-day period upon a renewed
 
11           request by the governmental entity.
 
12      803-O Backup preservation.(1)  A governmental entity
 
13 acting under section 803-N(2) may include in its subpoena or
 
14 court order a requirement that the service provider to whom the
 
15 request is directed create a backup copy of the contents of the
 
16 electronic communications sought in order to preserve those
 
17 communications.  Without notifying the subscriber or customer of
 
18 the subpoena or court order, the service provider shall create
 
19 the backup copy as soon as practicable, consistent with its
 
20 regular business practices, and shall confirm to the governmental
 
21 entity that the backup copy has been made.  The backup copy shall
 
22 be created within two business days after receipt by the service
 
23 provider of the subpoena or court order.
 

 
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 1      (2)  Notice to the subscriber or customer shall be made by
 
 2 the governmental entity within three days after receipt of the
 
 3 confirmation, unless notice is delayed pursuant to section
 
 4 803-P(1).
 
 5      (3)  The service provider shall not destroy the backup copy
 
 6 until the later of:
 
 7      (a)  The delivery of the information; or
 
 8      (b)  The resolution of any proceedings, including appeals of
 
 9           any proceeding, concerning the State's subpoena or
 
10           court order.
 
11      (4)  The service provider shall release the backup copy to
 
12 the requesting governmental entity no sooner than fourteen days
 
13 after the governmental entity's notice to the subscriber or
 
14 customer, if the service provider:
 
15      (a)  Has not received notice from the subscriber or customer
 
16           that the subscriber or customer has challenged the
 
17           governmental entity's request; or
 
18      (b)  Has not initiated proceedings to challenge the request
 
19           of the governmental entity.
 
20      (5)  A governmental entity may seek to require the creation
 
21 of a backup copy under subsection (1)(a) if, in its sole
 
22 discretion, the entity determines that there is reason to believe
 
23 that notification under section 803-N of the existence of the
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1 subpoena or court order may result in destruction of or tampering
 
 2 with evidence.  This determination is not subject to challenge by
 
 3 the subscriber, customer, or service provider.
 
 4      (6)  (a)  Within fourteen days after notice by the
 
 5           governmental entity to the subscriber or customer under
 
 6           subsection (2), the subscriber or customer may file a
 
 7           motion to quash the subpoena or vacate the court order,
 
 8           with copies served upon the governmental entity and
 
 9           with written notice of the challenge to the service
 
10           provider.  A motion to vacate a court order shall be
 
11           filed with the designated judge who issued the order.
 
12           A motion to quash a subpoena shall be filed in the
 
13           appropriate state court.  The motion or application
 
14           shall contain an affidavit or sworn statement:
 
15           (i)  Stating that the applicant is a customer or
 
16                subscriber to the service from which the contents
 
17                of electronic communications maintained for
 
18                applicant have been sought; and
 
19          (ii)  Stating the applicant's reasons for believing that
 
20                the records sought are not relevant to a
 
21                legitimate law enforcement inquiry or that there
 
22                has not been substantial compliance with this
 
23                subpart in some other respect.
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1      (b)  Service shall be made under this section upon a
 
 2           governmental entity by delivering or mailing by
 
 3           registered or certified mail a copy of the papers to
 
 4           the person, office, or department specified in the
 
 5           notice which the customer has received pursuant to this
 
 6           subpart.  For the purposes of this section, the term
 
 7           "delivery" has the meaning given that term in the
 
 8           Hawaii rules of civil procedure.
 
 9      (c)  If the court finds that the customer has complied with
 
10           paragraphs (a) and (b), the court shall order the
 
11           governmental entity to file a sworn response, which may
 
12           be filed in camera if the governmental entity includes
 
13           in its response the reasons that make in camera review
 
14           appropriate.  If the court is unable to determine the
 
15           motion or application on the basis of the parties'
 
16           initial allegations and response, the court may conduct
 
17           additional proceedings as it deems appropriate.  All
 
18           proceedings shall be completed and the motion or
 
19           application decided as soon as practicable after the
 
20           filing of the governmental entity's response.
 
21      (d)  If the court finds that the applicant is not the
 
22           subscriber or customer for whom the communications
 
23           sought by the governmental entity are maintained, or
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1           that there is a reason to believe that the law
 
 2           enforcement inquiry is legitimate and that the
 
 3           communications sought are relevant to that inquiry, it
 
 4           shall deny the motion or application and order the
 
 5           process enforced.  If the court finds that the
 
 6           applicant is the subscriber or customer for whom the
 
 7           communications sought by the governmental entity are
 
 8           maintained and that there is not a reason to believe
 
 9           that the communications sought are relevant to a
 
10           legitimate law enforcement inquiry or that there has
 
11           not been substantial compliance with this subpart, it
 
12           shall order the process quashed.
 
13      (e)  A court order denying a motion or application under
 
14           this section shall not be deemed a final order, and no
 
15           interlocutory appeal may be taken therefrom by the
 
16           customer.
 
17      803-P  Delayed notice.
 
18      (1)  (a)  A governmental entity action under section
 
19           803-N(2) may:
 
20           (i)  When a court order is sought, include in the
 
21                application a request, which the court shall
 
22                grant, for an order delaying the notification
 
23                required under section 803-N(2) for a period not
 

 
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 1                to exceed ninety days, if the court determines
 
 2                that there is reason to believe that notification
 
 3                of the existence of the court order may have an
 
 4                adverse result described in paragraph (b); or
 
 5          (ii)  When an administrative subpoena authorized by
 
 6                statute or a grand jury subpoena is obtained,
 
 7                delay the notification required under section
 
 8                803-N(2) for a period not to exceed ninety days
 
 9                upon the execution of a written certification of a
 
10                supervisory official that there is reason to
 
11                believe that notification of the existence of the
 
12                subpoena may have an adverse result described in
 
13                paragraph (b).
 
14      (b)  An adverse result for purposes of paragraph (a) is:
 
15           (i)  Endangering the life or physical safety of an
 
16                individual;
 
17          (ii)  Flight from prosecution;
 
18         (iii)  Destruction of or tampering with evidence;
 
19          (iv)  Intimidation of potential witnesses; or
 
20           (v)  Otherwise seriously jeopardizing an investigation
 
21                or unduly delaying a trial.
 
22      (c)  The governmental entity shall maintain a true copy of
 
23           certification under paragraph (a)(ii).
 

 
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 1      (d)  Extensions of the delay of notification provided in
 
 2           section 803-N of up to ninety days each may be granted
 
 3           by the court upon application, or by certification by a
 
 4           governmental entity, but only in accordance with
 
 5           subsection (2).
 
 6      (e)  Upon expiration of the period of delay of notification
 
 7           under paragraph (a) or (d), the governmental entity
 
 8           shall serve upon, or deliver by registered or first-
 
 9           class mail to, the customer or subscriber a copy of the
 
10           process or request together with notice that:
 
11           (i)  States with reasonable specificity the nature of
 
12                the law enforcement inquiry; and
 
13          (ii)  Informs the customer or subscriber:
 
14                (A)  That information maintained for the customer
 
15                     or subscriber by the service provider named
 
16                     in the process or request was supplied to or
 
17                     requested by that governmental authority and
 
18                     the date on which the supplying or request
 
19                     took place;
 
20                (B)  That notification of the customer or
 
21                     subscriber was delayed;
 
22                (C)  What governmental entity or court made the
 
23                     certification or determination pursuant to
 

 
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 1                     which that delay was made; and
 
 2                (D)  Which provision of this part allowed the
 
 3                     delay.
 
 4      (f)  As used in this subsection, the term "supervisory
 
 5           official" means the investigative agent in charge or
 
 6           assistant investigative agent in charge or an
 
 7           equivalent of an investigating agency's headquarters or
 
 8           regional office or the chief prosecuting attorney or
 
 9           the first deputy prosecuting attorney or an equivalent
 
10           of a prosecuting attorney's headquarters or regional
 
11           office.
 
12      (2)  A governmental entity acting under section 803-N, when
 
13 it is not required to notify the subscriber or customer under
 
14 section 803-N(2)(a)(i), or to the extent that it may delay notice
 
15 pursuant to subsection (1), may apply to a designated judge for
 
16 an order commanding a provider of electronic communications
 
17 service or remote computing service to whom a warrant, subpoena,
 
18 or court order is directed, for such period as the court deems
 
19 appropriate, not to notify any other person of the existence of
 
20 the warrant, subpoena, or court order.  The court shall enter the
 
21 order if it determines that there is reason to believe that
 
22 notification of the existence of the warrant, subpoena, or court
 
23 order will result in:
 

 
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 1      (a)  Endangering the life or physical safety of an
 
 2           individual;
 
 3      (b)  Flight from prosecution;
 
 4      (c)  Destruction of or tampering with evidence;
 
 5      (d)  Intimidation of potential witnesses; or
 
 6      (e)  Otherwise seriously jeopardizing an investigation or
 
 7           unduly delaying a trial.
 
 8      803-Q Cost reimbursement.  (1)  Except as otherwise
 
 9 provided in subsection (3), a governmental entity obtaining the
 
10 contents of communications, records, or other information under
 
11 section 803-M, 803-N, or 803-O shall pay to the person or entity
 
12 assembling or providing the information a fee for reimbursement
 
13 for costs that are reasonably necessary and that have been
 
14 directly incurred in searching for, assembling, reproducing, or
 
15 otherwise providing the information.  The reimbursable costs
 
16 shall include any costs due to necessary disruption of normal
 
17 operations of any electronic communication service or remote
 
18 computing service in which the information may be stored.
 
19      (2)  The amount of the fee provided by subsection (1) shall
 
20 be as mutually agreed by the governmental entity and the person
 
21 or entity providing the information or, in the absence of
 
22 agreement, shall be as determined by the court that issued the
 
23 order for production of the information or the court before which
 

 
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 1 a criminal prosecution relating to the information would be
 
 2 brought, if no court order was issued for production of the
 
 3 information.
 
 4      (3)  The requirement of subsection (1) does not apply with
 
 5 respect to records or other information maintained by a
 
 6 communications common carrier that relate to telephone toll
 
 7 records and telephone listings obtained under section 803-N.
 
 8 However, the court may order a payment as described in subsection
 
 9 (1), if the court determines the information required is
 
10 unusually voluminous in nature or otherwise caused an undue
 
11 burden on the provider.
 
12      803-R Civil action.(1)  Except as provided in section
 
13 803-N(5), any provider of electronic communication service,
 
14 subscriber, or other person aggrieved by any violation relating
 
15 to this subpart in which the conduct constituting the violation
 
16 is engaged in with a knowing or intentional state of mind, may
 
17 recover such relief as may be appropriate, in a civil action,
 
18 from the person or entity that engaged in that violation.
 
19      (2)  In a civil action under this section, appropriate
 
20 relief includes:
 
21      (a)  Such preliminary and other equitable or declaratory
 
22           relief as may be appropriate;
 
23      (b)  Damages under subsection (3); and
 

 
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 1      (c)  A reasonable attorney's fee and other litigation costs
 
 2           reasonably incurred.
 
 3      (3)  The court may assess as damages in a civil action under
 
 4 this section the sum of the actual damages suffered by the
 
 5 plaintiff and any profits made by the violator as a result of the
 
 6 violation, but in no case shall a person entitled to recover
 
 7 receive less than the sum of $1,000.  If the violation is knowing
 
 8 or intentional, the court may assess punitive damages.  In the
 
 9 case of a successful action to enforce liability under this
 
10 section, the court may assess the costs of the action, together
 
11 with reasonable attorney's fees determined by the court.
 
12      (4)  If a court determines that any state or county agency
 
13 or department has violated this subpart and the court finds that
 
14 the circumstances surrounding the violation raise the question
 
15 whether an officer or employee of the state or county agency or
 
16 department acted knowingly or intentionally with respect to the
 
17 violation, the agency or department concerned promptly shall
 
18 initiate a proceeding to determine whether disciplinary action is
 
19 warranted against the officer or employee.
 
20      (5)  A good faith reliance on:
 
21      (a)  A court warrant or order, a grand jury subpoena, a
 
22           legislative authorization, or a statutory
 
23           authorization;
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1      (b)  A request of an investigative or law enforcement
 
 2           officer under section 803-H(7); or
 
 3      (c)  A good faith determination that section 803-B(3)
 
 4           permitted the conduct complained of;
 
 5 is a complete defense to any civil or criminal action brought
 
 6 pursuant to this subpart or any other law.
 
 7      (6)  A civil action under this section may not be commenced
 
 8 later than two years after the date upon which the claimant first
 
 9 discovered or had a reasonable opportunity to discover the
 
10 violation.
 
11      803-S Exclusivity of remedies.  The remedies and sanctions
 
12 described in this subpart are the only judicial remedies and
 
13 sanctions for nonconstitutional violation of this subpart.
 
14                Subpart D.  Mobile Tracking Devices
 
15      803-T  Application for authorization to install and use a
 
16 mobile tracking device.(1)  A designated judge is empowered to
 
17 issue a warrant or other order for the installation of a mobile
 
18 tracking device.  The order may authorize the use of that device
 
19 within the jurisdiction of the court and outside that
 
20 jurisdiction, if the device is installed in that jurisdiction.
 
21      (2)  Upon application to the designated judge for a court
 
22 order, the designated judge should be satisfied that there are
 
23 sufficient facts and circumstances contained within the
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1 application to establish probable cause to believe that the use
 
 2 of a mobile tracking device will discover the fruits,
 
 3 instrumentalities, or evidence of a crime or is relevant to an
 
 4 ongoing criminal investigation.
 
 5      (3)  If the designated judge is so satisfied, the judge
 
 6 shall issue an order specifying:
 
 7      (a)  The identity, if known, of the person who is the
 
 8           subject of the investigation;
 
 9      (b)  The number of mobile tracking devices to be used and
 
10           the geographical locations where the devices are to be
 
11           installed; and
 
12      (c)  The identity, if known, of any person who may have a
 
13           privacy interest in the point of installation of the
 
14           mobile tracking device.
 
15      (4)  An order authorizing installation and use of a mobile
 
16 tracking device shall not exceed sixty days.  Extensions of the
 
17 orders may be granted only upon reapplication establishing
 
18 probable cause to justify the continued use of a mobile tracking
 
19 device.  The period of the extension shall not exceed sixty days.
 
20      (5)  The order shall direct that the order be sealed until
 
21 otherwise directed by the court.
 
22      803-U General prohibition on pen register and trap and
 
23 trace device use; exception.(1)  Except as provided in this
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1 section, no person shall install or use a pen register or a trap
 
 2 and trace device without first obtaining a court order under
 
 3 section 803-W.
 
 4      (2)  The prohibition of subsection (1) does not apply with
 
 5 respect to the use of a pen register or a trap and trace device
 
 6 by a provider of electronic or wire communication service:
 
 7      (a)  Relating to the operation, maintenance, and testing of
 
 8           a wire or electronic communication service or to the
 
 9           protection of the rights or property of the provider or
 
10           to the protection of users of that service from abuse
 
11           of service or unlawful use of service;
 
12      (b)  To record the fact that a wire or electronic
 
13           communication was initiated or completed in order to
 
14           protect the provider, another provider furnishing
 
15           service toward the completion of the wire
 
16           communication, or a user of that service from
 
17           fraudulent, unlawful, or abusive use of service; or
 
18      (c)  Where the consent of the user of that service has been
 
19           obtained.
 
20      (3)  A government agency authorized to install and use a pen
 
21 register under this subpart shall use technology reasonably
 
22 available to it that restricts the recording or decoding of
 
23 electronic or other impulses to the dialing and signaling
 

 
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 1 information utilized in call processing.
 
 2      (4)  Whoever knowingly violates subsection (1) shall be
 
 3 guilty of a misdemeanor.
 
 4      803-V  Application for an order for a pen register or a
 
 5 trap and trace device.(1)  The attorney general or the
 
 6 prosecuting attorney for each county, or a subordinate designated
 
 7 to act in either's absence or incapacity, or an investigative or
 
 8 law enforcement officer may make application for an order or an
 
 9 extension of an order under section 803-W authorizing or
 
10 approving the installation and use of a pen register or a trap
 
11 and trace device under this subpart, in writing under oath or
 
12 equivalent affirmation, to a designated judge.
 
13      (2)  An application under subsection (1) shall include:
 
14      (a)  The identity of the official or the investigative or
 
15           law enforcement officer making the application and the
 
16           identity of the law enforcement agency conducting the
 
17           investigation; and
 
18      (b)  A certification by the applicant that the information
 
19           likely to be obtained is relevant to an ongoing
 
20           criminal investigation being conducted by that agency.
 
21      803-W Issuance of an order for a pen register or a trap
 
22 and trace device.  (1)  Upon an application made under section
 
23 803-V, the court shall enter an ex parte order authorizing the
 

 
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                                     H.B. NO.1501       
                                                        
                                                        

 
 1 installation and use of a pen register or a trap and trace device
 
 2 within the jurisdiction of the court, if the court finds that the
 
 3 official or the investigative or law enforcement officer has
 
 4 certified to the court that the information likely to be obtained
 
 5 by the installation and use is relevant to an ongoing criminal
 
 6 investigation.
 
 7      (2)  An order issued under this section:
 
 8      (a)  Shall specify:
 
 9           (i)  The identity, if known, of the person to whom is
 
10                leased or in whose name is listed the telephone
 
11                line to which the pen register or trap and trace
 
12                device is to be attached;
 
13          (ii)  The identity, if known, of the person who is the
 
14                subject of the criminal investigation;
 
15         (iii)  The number and, if known, physical location of the
 
16                telephone line to which the pen register or trap
 
17                and trace device is to be attached and, in the
 
18                case of a trap and trace device, the geographic
 
19                limits of the trap and trace order; and
 
20          (iv)  A statement of the offense to which the
 
21                information likely to be obtained by the pen
 
22                register or trap and trace device relates; and
 
23      (b)  Shall direct, upon the request of the applicant, the
 

 
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 1           furnishing of information, facilities, and technical
 
 2           assistance necessary to accomplish the installation of
 
 3           the pen register or trap and trace device under section
 
 4           803-X.
 
 5      (3)  (a)  An order issued under this subpart shall authorize
 
 6           the installation and use of a pen register or a trap
 
 7           and trace device for a period not to exceed sixty days.
 
 8      (b)  Extensions of an order may be granted, but only upon an
 
 9           application for an order under section 803-V and upon
 
10           the judicial finding required by subsection (1).  The
 
11           period of extension shall be for a period not to exceed
 
12           sixty days.
 
13      (4)  An order authorizing or approving the installation and
 
14 use of a pen register or a trap and trace device shall direct
 
15 that:
 
16      (a)  The order be sealed until otherwise ordered by the
 
17           court; and
 
18      (b)  The person owning or leasing the line to which the pen
 
19           register or a trap and trace device is attached, or who
 
20           has been ordered by the court to provide assistance to
 
21           the applicant, not disclose the existence of the pen
 
22           register or trap and trace device or the existence of
 
23           the investigation to the listed subscriber or to any
 

 
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 1           other person, unless or until otherwise ordered by the
 
 2           court.
 
 3      803-X Assistance in installation and use of a pen register
 
 4 or a trap and trace device.  (1)  Upon the request of the
 
 5 attorney general or the county prosecuting attorney, or a
 
 6 subordinate designated to act in either's absence or incapacity,
 
 7 or an investigative or law enforcement officer authorized to
 
 8 install and use a pen register under this subpart, a provider of
 
 9 wire or electronic communication service, landlord, custodian, or
 
10 other person shall furnish the investigative or law enforcement
 
11 officer forthwith all information, facilities, and technical
 
12 assistance necessary to accomplish the installation of the pen
 
13 register unobtrusively and with a minimum of interference with
 
14 the services that the person so ordered by the court accords the
 
15 party with respect to whom the installation and use is to take
 
16 place, if the assistance is directed by a court order as provided
 
17 in section 803-W(2)(b).
 
18      (2)  Upon the request of the attorney general or the county
 
19 prosecuting attorney, or a subordinate designated to act in
 
20 either's absence or incapacity, or an officer of a law
 
21 enforcement agency authorized to receive the results of a trap
 
22 and trace device under this subpart, a provider of a wire or
 
23 electronic communication service, landlord, custodian, or other
 

 
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 1 person shall install the device forthwith on the appropriate line
 
 2 and shall furnish the investigative or law enforcement officer
 
 3 all additional information, facilities, and technical assistance
 
 4 including installation and operation of the device unobtrusively
 
 5 and with a minimum of interference with the services that the
 
 6 person so ordered by the court accords the party with respect to
 
 7 whom the installation and use is to take place, if the
 
 8 installation and assistance is directed by a court order as
 
 9 provided in section 803-W(2)(b).  Unless otherwise ordered by the
 
10 court, the results of the trap and trace device shall be
 
11 furnished, pursuant to section 803-W(2) or 803-Y, to the officer
 
12 of a law enforcement agency, designated in the court order, at
 
13 reasonable intervals during regular business hours for the
 
14 duration of the order.
 
15      (3)  A provider of a wire or electronic communication
 
16 service, landlord, custodian, or other person who furnishes
 
17 facilities or technical assistance pursuant to this section shall
 
18 be reasonably compensated for the reasonable expenses incurred in
 
19 providing the facilities and assistance.
 
20      (4)  No cause of action shall lie in any court against any
 
21 provider of a wire or electronic communication service, its
 
22 officers, employees, agents, or other specified persons for
 
23 providing information, facilities, or assistance in accordance
 

 
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 1 with the terms of a court order under this part or request
 
 2 pursuant to section 803-Y.
 
 3      (5)  A good faith reliance on a court order under this part,
 
 4 a request pursuant to section 803-Y, a legislative authorization,
 
 5 or a statutory authorization is a complete defense against any
 
 6 civil or criminal action brought under this part or any other
 
 7 law.
 
 8      803-Y Emergency pen register and trap and trace device
 
 9 installation.(1)  Notwithstanding any other provision of this
 
10 part to the contrary, any investigative or law enforcement
 
11 officer, specially designated by the attorney general of this
 
12 State or the prosecuting attorney for a county of the State, who
 
13 reasonably determines that:
 
14      (a)  An emergency situation exists that involves:
 
15           (i)  Immediate danger of death or serious bodily injury
 
16                to any person; or
 
17          (ii)  Conspiratorial activities characteristic of
 
18                organized crime and
 
19           that requires the installation and use of pen register
 
20           or a trap and trace device before an order authorizing
 
21           the installation and use can, with due diligence, be
 
22           obtained, and
 
23      (b)  There are grounds upon which an order could be entered
 

 
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 1           under this subpart to authorize the installation and
 
 2           use,
 
 3 may order installed and use a pen register or trap and trace
 
 4 device if, within forty-eight hours after the installation has
 
 5 occurred or begins to occur, an order approving the installation
 
 6 or use is issued in accordance with section 803-W.
 
 7      (2)  In the absence of an authorizing order, the use shall
 
 8 immediately terminate when the information sought is obtained,
 
 9 when the application for the order is denied, or when forty-eight
 
10 hours have lapsed since the installation of the pen register or
 
11 trap and trace device, whichever is earlier.
 
12      (3)  The knowing installation or use by any investigative or
 
13 law enforcement officer of a pen register or trap and trace
 
14 device pursuant to subsection (1) without application for the
 
15 authorizing order within forty-eight hours of the installation
 
16 shall constitute a violation of this part.
 
17      (4)  A provider of a wire or electronic service, landlord,
 
18 custodian, or other person who furnished facilities or technical
 
19 assistance pursuant to this section shall be compensated for the
 
20 reasonable expenses incurred in providing the facilities and
 
21 assistance.
 
22      803-Z  Reports concerning pen registers and trap and trace
 
23 devices.  The attorney general shall annually report to the
 

 
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 1 legislature on the number of pen register orders and orders for
 
 2 trap and trace devices applied for by law enforcement agencies of
 
 3 the State."
 
 4      SECTION 2.  Chapter 28, Hawaii Revised Statutes, is amended
 
 5 by adding a new section to be appropriately designated and to
 
 6 read as follows:
 
 7      "28-    Surveillance review unit.  There is established in
 
 8 the department of attorney general a surveillance review unit,
 
 9 which shall be responsible for reviewing all applications for
 
10 interception of wire, oral, or electronic communications under
 
11 chapter 803, prior to their submittal to a designated judge and
 
12 regardless of whether submitted by county or state investigative
 
13 or law enforcement officers.  A surveillance review unit attorney
 
14 shall review the application in a timely manner to ensure it
 
15 meets the requirements of chapter 803, part   , and applicable
 
16 law and recommend any necessary additions or changes to the
 
17 application.  Thereafter, the surveillance review unit attorney
 
18 shall prepare a written memorandum recommending approval or
 
19 disapproval of the application, which shall be submitted to the
 
20 designated judge with the application.  The attorney general
 
21 shall establish standards and procedures for the timely review of
 
22 these applications to ensure continuity and conformity with
 
23 applicable law."
 

 
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 1      SECTION 3.  Section 641-13, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "641-13  By State in criminal cases.  An appeal may be
 
 4 taken by and on behalf of the State from the district or circuit
 
 5 courts to the supreme court, subject to chapter 602, in all
 
 6 criminal cases, in the following instances:
 
 7      (1)  From an order or judgment quashing, setting aside, or
 
 8           sustaining a motion to dismiss[,] any indictment or
 
 9           complaint or any count thereof;
 
10      (2)  From an order or judgment[,] sustaining a special plea
 
11           in bar[,] or dismissing the case where the defendant
 
12           has not been put in jeopardy;
 
13      (3)  From an order granting a new trial;
 
14      (4)  From an order arresting judgment;
 
15      (5)  From a ruling on a question of law adverse to the
 
16           State, where the defendant was convicted and appeals
 
17           from the judgment;
 
18      (6)  From the sentence, on the ground that it is illegal;
 
19      (7)  From a pretrial order granting a motion for the
 
20           suppression of evidence, including a confession or
 
21           admission, or the return of property in which case the
 
22           intermediate appellate court or the supreme court, as
 
23           the case may be, shall give priority to [such an] the
 

 
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 1           appeal and the order shall be stayed pending the
 
 2           outcome of the appeal;
 
 3      (8)  From an order denying a request by the State for
 
 4           protective order for nondisclosure of witness for
 
 5           [their] reason of personal safety under Rule 16(e)(4)
 
 6           of the Hawaii Rules of Penal Procedure, in which case
 
 7           the intermediate appellate court or the supreme court,
 
 8           as the case may be, shall give priority to [such] the
 
 9           appeal and the order shall be stayed pending outcome of
 
10           [such] the appeal;
 
11      (9)  From a judgment of acquittal following a jury verdict
 
12           of guilty[.]; and
 
13     (10)  From a denial of an application for an order of
 
14           approval or authorization of the interception of a
 
15           wire, oral, or electronic communication pursuant to
 
16           section 803-H."
 
17      SECTION 4.  Chapter 803, part IV, Hawaii Revised Statutes,
 
18 is repealed.
 
19      SECTION 5.  There is appropriated out of the general
 
20 revenues of the State of Hawaii the sum of $          , or so
 
21 much thereof as may be necessary for fiscal year 1999-2000, and
 
22 the same sum, or so much thereof as may be necessary for fiscal
 
23 year 2000-2001, for purposes of establishing a surveillance
 

 
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 1 review unit within the department of attorney general, including
 
 2 the hiring of necessary staff.  The sum appropriated shall be
 
 3 expended by the department of attorney general for the purposes
 
 4 of this Act.
 
 5      SECTION 6.  In codifying the new part added to chapter 803,
 
 6 Hawaii Revised Statutes, by section 1 of this Act, the revisor of
 
 7 statutes shall substitute appropriate section numbers for the
 
 8 letters used in the new sections' designations in this Act.
 
 9      SECTION 7.  If any provision of this Act, or the application
 
10 thereof to any person or circumstance is held invalid, the
 
11 invalidity does not affect other provisions or applications of
 
12 the Act which can be given effect without the invalid provision
 
13 or application, and to this end the provisions of this Act are
 
14 severable.
 
15      SECTION 8.  This Act does not affect rights and duties that
 
16 matured, penalties that were incurred, and proceedings that were
 
17 begun, before its effective date.
 
18      SECTION 9.  Statutory material to be repealed is bracketed.
 
19 New statutory material is underscored.
 
20      SECTION 10.  This Act shall take effect upon its approval.
 
21 
 
22                           INTRODUCED BY:  _______________________