REPORT TITLE:
Wiretap.; Electronic Surv.


DESCRIPTION:
Conforms state wiretapping and electronic surveillance law to
federal law. (HB1501 HD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
HOUSE OF REPRESENTATIVES                H.B. NO.           1501
TWENTIETH LEGISLATURE, 1999                                H.D. 1
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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 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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 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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 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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 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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 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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 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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 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
 
24                (B)  A certification in writing, by a person
 

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

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

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

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

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

 
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 1           of any communication (other than a communication to the
 
 2           person or entity or an agent thereof) while in
 
 3           transmission on that service to any person or entity
 
 4           other than an addressee or intended recipient of the
 
 5           communication or an agent of the addressee or intended
 
 6           recipient.
 
 7      (b)  A person or entity providing electronic communication
 
 8           service to the public may divulge the contents of any
 
 9           such communication:
 
10           (i)  As otherwise authorized in subsection (2)(a) or
 
11                section 803-G;
 
12          (ii)  With the lawful consent of the originator or any
 
13                addressee or intended recipient of the
 
14                communication;
 
15         (iii)  To a person employed or authorized, or whose
 
16                facilities are used, to forward the communication
 
17                to its destination; or
 
18          (iv)  That was inadvertently obtained by the service
 
19                provider and that appears to pertain to the
 
20                commission of a crime, if the divulgence is made
 
21                to a law enforcement agency.
 
22      (4)  (a)  Except as provided in paragraph (b) or in
 
23           subsection (5), whoever violates subsection (1) shall
 

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

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

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

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

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

 
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 1           contract with, such a provider, in the normal course of
 
 2           the business of providing that wire or electronic
 
 3           communication service; or
 
 4      (b)  An officer, agent, or employee of, or a person under
 
 5           contract with, the State or a county, in the normal
 
 6           course of the activities of the State or a county; or
 
 7      (c)  A person acting under color of law
 
 8 to send through the mail, send or carry in intrastate,
 
 9 interstate, or foreign commerce, or manufacture, assemble,
 
10 possess, or sell any electronic, mechanical, or other device,
 
11 knowing or having reason to know that the design of the device
 
12 renders it primarily useful for the purpose of surreptitious
 
13 interception of wire, oral, or electronic communications.
 
14      803-D Confiscation of wire, oral, or electronic
 
15 communication intercepting devices.  Any electronic, mechanical,
 
16 or other device used, sent, carried, manufactured, assembled,
 
17 possessed, sold, or advertised, or otherwise distributed in
 
18 violation of this part shall be subject to seizure and forfeited
 
19 under chapter 712A.
 
20      803-E Prohibition of use as evidence of intercepted wire
 
21 or oral communications.  Unless found to be admissible under the
 
22 doctrine of inevitable discovery, no part of the contents of any
 
23 wire or oral communication and no evidence derived therefrom may
 

 
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 1 be received in evidence in any trial, hearing, or other
 
 2 proceeding in or before any court, grand jury, department,
 
 3 officer, agency, regulatory body, legislative committee, or other
 
 4 authority of the State or a county, if the disclosure of that
 
 5 information would be in violation of this part.
 
 6      803-F  Authorization for interception of wire, oral, or
 
 7 electronic communications.  The attorney general, a designated
 
 8 deputy attorney general in the attorney general's absence or
 
 9 incapacity, the prosecuting attorney of each county, or a
 
10 designated deputy prosecuting attorney in the prosecuting
 
11 attorney's absence or incapacity, may authorize an application to
 
12 a designated judge for, and the judge may grant, in conformity
 
13 with section 803-H, an order authorizing or approving the
 
14 interception of wire or oral communications, by an investigative
 
15 or law enforcement officer or agency having responsibility for
 
16 the investigation of the offense as to which the application is
 
17 made, if the interception might provide or has provided evidence
 
18 of:
 
19      (a)  Murder;
 
20      (b)  Kidnapping;
 
21      (c)  Felony criminal property damage involving the danger of
 
22           serious bodily injury as defined in section 707-700;
 
23      (d)  Organized crime;
 

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

 
Page 26                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

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

 
Page 27                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1 as provided in subsections (1) and (2).  The contents and any
 
 2 evidence derived therefrom may be used under subsection (3) when
 
 3 authorized or approved by a designated judge, if the judge finds
 
 4 on subsequent application that the contents were otherwise
 
 5 intercepted in accordance with this part.  The application shall
 
 6 be made as soon as practicable.
 
 7      803-H  Procedure for interception of wire, oral, or
 
 8 electronic communications; application; order; remedies.(1)
 
 9 Each application for an order authorizing or approving the
 
10 interception of a wire, oral, or electronic communication under
 
11 this part shall be made in writing upon oath or affirmation to a
 
12 designated judge. The application shall state the applicant's
 
13 authority to make the application.  Each application shall
 
14 include the following information:
 
15      (a)  The identity of the investigative or law enforcement
 
16           officer making the application and the officer
 
17           authorizing the application;
 
18      (b)  A full and complete statement of the facts and
 
19           circumstances relied upon by the applicant, to justify
 
20           the applicant's belief that an order should be issued,
 
21           including:
 
22           (i)  Details as to the particular offense that has
 
23                been, is being, or is about to be committed;
 

 
Page 28                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1          (ii)  Except as provided in subsection (11), a
 
 2                particular description of the nature and location
 
 3                of the facilities from which or the place where
 
 4                the communication is to be intercepted;
 
 5         (iii)  A particular description of the type of
 
 6                communications sought to be intercepted; and
 
 7          (iv)  The identity of the person, if known, committing
 
 8                the offense and whose communications are to be
 
 9                intercepted;
 
10      (c)  A full and complete statement as to whether other
 
11           investigative procedures have been tried and failed or
 
12           why they reasonably appear to be either unlikely to
 
13           succeed if tried or too dangerous;
 
14      (d)  A full and complete statement of the facts concerning
 
15           how the interception is to be accomplished, and if
 
16           physical entry upon private premises is necessary,
 
17           facts supporting such necessity;
 
18      (e)  A statement of the period of time for which the
 
19           interception is required to be maintained; or if the
 
20           nature of the investigation is such that the
 
21           authorization for interception should not automatically
 
22           terminate when the described type of communication has
 
23           been first obtained, a particular description of facts
 

 
Page 29                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1           establishing probable cause to believe that additional
 
 2           communications of the same type will occur thereafter;
 
 3      (f)  A full and complete statement of the facts concerning
 
 4           all previous applications known to the individual
 
 5           authorizing and making the application, made to any
 
 6           judge for authorization to intercept, or for approval
 
 7           of interceptions of, wire, oral, or electronic
 
 8           communications involving any of the same persons,
 
 9           facilities, or places specified in the application, and
 
10           the action taken by the judge on each application; and
 
11      (g)  When the application is for the extension of an order,
 
12           a statement setting forth the results thus far obtained
 
13           from the interception or a reasonable explanation of
 
14           the failure to obtain any results.
 
15      (2)  An in camera adversary hearing shall be held on any
 
16 interception application or application for extension.  Upon
 
17 receipt of the application the designated judge shall appoint an
 
18 attorney to oppose the application.  The attorney shall be
 
19 appointed and compensated in the same manner as attorneys are
 
20 appointed to represent indigent criminal defendants. The
 
21 appointed attorney shall be given at least twenty-four hours
 
22 notice of the hearing and shall be served with copies of the
 
23 application, proposed order, if any, and supporting documents
 

 
Page 30                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1 with the notice. At the hearing, the attorney appointed may
 
 2 cross-examine witnesses and present arguments in opposition to
 
 3 the application. The affiant supporting the application shall be
 
 4 present at the hearing. If an interlocutory appeal is taken by
 
 5 the state from the denial of an application, the appointed
 
 6 attorney shall be retained to answer the appeal or another
 
 7 attorney shall be appointed for the appeal. The designated
 
 8 circuit court may require the applicant to furnish additional
 
 9 testimony or documentary evidence under oath or affirmation in
 
10 support of the application. A transcript shall be made and kept
 
11 with the application and orders.
 
12      (3)  Upon such application and after such adversary hearing,
 
13 the designated judge may enter an ex parte order, as requested or
 
14 as modified, authorizing or approving interception of wire, oral,
 
15 or electronic communications, if the designated judge determines
 
16 on the basis of the facts submitted by the applicant that:
 
17      (a)  There is probable cause for belief that a person is
 
18           committing, has committed, or is about to commit a
 
19           particular offense enumerated in section 803-F;
 
20      (b)  There is probable cause for belief that particular
 
21           communications concerning that offense will be obtained
 
22           through the interception;
 
23      (c)  Normal investigative procedures have been tried and
 

 
Page 31                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1           have failed or reasonably appear to be either unlikely
 
 2           to succeed if tried or to be too dangerous; and
 
 3      (d)  Except as provided in subsection (11), there is
 
 4           probable cause for belief that the facilities from
 
 5           which or the place where the wire, oral, or electronic
 
 6           communications are to be intercepted are being used, or
 
 7           are about to be used, in connection with the commission
 
 8           of such offense or are leased to, listed in the name
 
 9           of, or commonly used by such person.
 
10      (4)  Each order authorizing or approving the interception of
 
11 any wire, oral, or electronic communication under this part shall
 
12 specify:
 
13      (a)  The identify of the person, if known, whose
 
14           communications are to be intercepted;
 
15      (b)  The nature and location of the communications
 
16           facilities as to which or the place where authority to
 
17           intercept is granted;
 
18      (c)  A particular description of the type of communication
 
19           sought to be intercepted and a statement of the
 
20           particular offense to which it relates;
 
21      (d)  The identity of the agency authorized to intercept the
 
22           communications and of the person authorizing the
 
23           application; and
 
24      (e)  The period of time during which the interception is
 

 
Page 32                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1           authorized, including a statement as to whether the
 
 2           interception is to terminate automatically upon the
 
 3           described communication first being obtained.
 
 4      (f)  How the authorization is to be accomplished.
 
 5      Upon request of the applicant, an order authorizing the
 
 6 interception of a wire, oral, or electronic communication under
 
 7 this subpart shall direct that a provider of wire or electronic
 
 8 communication service, landlord, custodian, or other person shall
 
 9 furnish the applicant forthwith all information, facilities, and
 
10 technical assistance necessary to accomplish the interception
 
11 unobtrusively and with a minimum of interference with the
 
12 services that the service provider, landlord, custodian, or
 
13 person is according the person whose communications are to be
 
14 intercepted.  Any provider of wire or electronic communication
 
15 service, landlord, custodian, or other person furnishing the
 
16 facilities or technical assistance shall be compensated therefor
 
17 by the applicant for reasonable expenses incurred in providing
 
18 the facilities or assistance.
 
19      (5)  No order entered under this section shall authorize or
 
20 approve the interception of any wire, oral, or electronic
 
21 communication for any period longer than is necessary to achieve
 
22 the objective of the authorization, nor in any event longer than
 
23 thirty days.  The thirty-day period begins on the earlier of the
 

 
Page 33                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1 day on which the investigative or law enforcement officer first
 
 2 begins to conduct an interception under the order or ten days
 
 3 after the order is entered.  Extensions of an order may be
 
 4 granted, but only upon application for an extension made in
 
 5 accordance with subsection (1) and the court making the findings
 
 6 required by subsection (3).  The period of extension shall be no
 
 7 longer than the authorizing judge deems necessary to achieve the
 
 8 purposes for which it was granted and in no event for longer than
 
 9 thirty days.  Every order and extension thereof shall contain a
 
10 provision that the authorization to intercept shall be executed
 
11 as soon as practicable, shall be conducted in such a way as to
 
12 minimize the interception of communications not otherwise subject
 
13 to interception under this part, and shall terminate upon
 
14 attainment of the authorized objective, or in any event in thirty
 
15 days.  In the event the intercepted communication is in a code or
 
16 foreign language, and an expert in that foreign language or code
 
17 is not reasonably available during the interception period,
 
18 minimization may be accomplished as soon as practicable after the
 
19 interception.
 
20      An interception under this part may be conducted, in whole
 
21 or in part, by investigative or law enforcement officers or by an
 
22 individual operating under a contract with the State or a county,
 
23 acting under the supervision of an investigative or law
 

 
Page 34                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1 enforcement officer authorized to conduct the interception.
 
 2      (1)  The interception shall be conducted in such a way as to
 
 3           minimize the resulting invasion of privacy including
 
 4           but not limited to the following methods of
 
 5           minimization:
 
 6           (A)  Conversations that appear unlikely to result in
 
 7                incriminating conversations relating to the
 
 8                offense for which the issued shall be subject to
 
 9                intermittent monitoring; and
 
10           (B)  Privileged conversations, including those between
 
11                a person and the person's spouse, attorney,
 
12                physician, or clergy, shall not be intercepted
 
13                unless both parties to the conversation are named
 
14                or described in the application and order.
 
15      (2)  In determining whether incriminating statements are
 
16           likely to occur during a conversation the following
 
17           factors should be considered:
 
18           (A)  The parties to the conversation;
 
19           (B)  The particular offense being investigated;
 
20           (C)  The subject matter of the conversation;
 
21           (D)  The subject matter of previous conversations
 
22                between the same parties and whether any
 
23                incriminating statements occurred; and
 

 
Page 35                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1           (E)  The hour and day of conversation.
 
 2      (6)  Whenever an order authorizing interception is entered
 
 3 pursuant to this part, the order may require reports to be made
 
 4 to the judge who issued the order showing what progress has been
 
 5 made toward achievement of the authorized objective and the need
 
 6 for continued interception.  The reports shall be made at such
 
 7 intervals as the judge may require.
 
 8      (7)  Notwithstanding any other provision of this part to the
 
 9 contrary, the attorney general or the prosecuting attorney for a
 
10 county of this State, who reasonably determines that:
 
11      (a)  An emergency situation exists that involves:
 
12           (i)  Immediate danger of death or serious physical
 
13                injury to any person; or
 
14          (ii)  Conspiratorial activities characteristic of
 
15                organized crime;
 
16           and that situation requires a wire, oral, or electronic
 
17           communication to be intercepted before an order
 
18           authorizing the interception can, with due diligence,
 
19           be obtained; and
 
20      (b)  There are grounds upon which an order could be entered
 
21           under this part to authorize the interception,
 
22 may intercept the wire, oral, or electronic communication if an
 
23 application for an order approving the interception is made in
 

 
Page 36                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1 accordance with this section within forty-eight hours after the
 
 2 interception has occurred or begins to occur.  In the absence of
 
 3 an order, the interception shall terminate immediately once the
 
 4 communication sought is obtained or when the application for the
 
 5 order is denied, whichever is earlier.  In the event the
 
 6 application for approval is denied, or in any other case in which
 
 7 the interception is terminated without an order having been
 
 8 issued, the contents of any wire, oral, or electronic
 
 9 communication intercepted shall be treated as having been
 
10 obtained in violation of this part, and an inventory shall be
 
11 served as provided for in subsection (8)(d) on the person named
 
12 in the application.
 
13      (8)  (a)  The contents of any wire, oral, or electronic
 
14           communication intercepted by any means authorized by
 
15           this part shall be recorded on tape or wire or other
 
16           comparable device, if possible.  The recording of the
 
17           contents of any wire, oral, or electronic communication
 
18           under this subsection shall be done in such way as will
 
19           protect the recording from editing or other
 
20           alterations.  Immediately upon the expiration of the
 
21           period of the order, or extensions thereof, the
 
22           recording shall be made available to the judge issuing
 
23           the order and sealed under the judge's directions.
 

 
Page 37                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1           Custody of the recording shall be wherever the judge
 
 2           orders.  Recordings shall not be destroyed, except upon
 
 3           an order of the issuing or denying judge, and, in any
 
 4           event, shall be kept for ten years.  Duplicate
 
 5           recordings may be made for use or disclosure pursuant
 
 6           to section 803-G(1) and (2) for investigations.  The
 
 7           presence of the seal provided for by this subsection,
 
 8           or a satisfactory explanation for the absence thereof,
 
 9           shall be a prerequisite for the use or disclosure of
 
10           the contents of any wire, oral, or electronic
 
11           communication or evidence derived therefrom under
 
12           section 803-G(3).
 
13      (b)  Applications made and orders granted under this part
 
14           shall be sealed by the judge.  Custody of the
 
15           applications and orders shall be wherever the judge
 
16           directs.  Applications and orders shall be disclosed
 
17           only upon a showing of good cause before a designated
 
18           judge, shall not be destroyed, except on order of the
 
19           issuing or denying judge, and, in any event, shall be
 
20           kept for ten years.
 
21      (c)  Any violation of this subsection may be punished as
 
22           contempt of the issuing or denying judge.
 
23      (d)  Within a reasonable time but not later than ninety days
 

 
Page 38                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1           after either the filing of an application for an order
 
 2           of approval under subsection (7) that is denied or the
 
 3           termination of the period of an order or extensions
 
 4           thereof, the issuing or denying judge shall cause to be
 
 5           served, on the persons named in the order or the
 
 6           application and any other parties to intercepted
 
 7           communications as the judge may determine, in the
 
 8           judge's discretion, is in the interest of justice, an
 
 9           inventory which shall include notice of:
 
10           (i)  The fact of the entry of the order or the
 
11                application;
 
12          (ii)  The date of the entry and the period of
 
13                authorized, approved, or disapproved interception,
 
14                or the denial of the application; and
 
15         (iii)  The fact that during the period wire, oral, or
 
16                electronic communications were or were not
 
17                intercepted.
 
18           The judge, upon the filing of a motion shall make
 
19           available to the person or the person's counsel for
 
20           inspection the intercepted communications,
 
21           applications, and orders.  On an ex parte showing of
 
22           good cause to a designated judge, the judge may permit
 
23           the serving of the inventory required by this
 

 
Page 39                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1           subsection to be postponed.
 
 2      (9)  The contents of any wire, oral, or electronic
 
 3 communication intercepted pursuant to this part or evidence
 
 4 derived therefrom shall not be received in evidence or otherwise
 
 5 disclosed in any trial, hearing, or other proceeding in a court
 
 6 of this State, unless each party, not less than thirty days
 
 7 before the trial, hearing, or proceeding, has been furnished with
 
 8 a copy of the court order and accompanying application under
 
 9 which the interception was authorized or approved.  This thirty
 
10 day period may be shortened or waived by the judge upon a finding
 
11 that it was not possible to furnish the party with the above
 
12 information thirty days before the trial, hearing, or proceeding
 
13 and that the party will not be prejudiced by the delay in
 
14 receiving the information.
 
15      (10) (a)  Any aggrieved person in any trial, hearing, or
 
16           proceeding in or before any court, department, officer,
 
17           agency, regulatory body, or other authority of the
 
18           State or a county may move to suppress the contents of
 
19           any wire or oral communication intercepted pursuant to
 
20           this part, or evidence derived therefrom, on the
 
21           grounds that:
 
22           (i)  The communication was unlawfully intercepted;
 
23          (ii)  The order of authorization or approval under which
 

 
Page 40                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1                it was intercepted is insufficient on its face; or
 
 2         (iii)  The interception was not made in conformity with
 
 3                the order of authority or approval.
 
 4           The motion shall be made before the trial, hearing, or
 
 5           proceeding, unless there was no opportunity to make the
 
 6           motion or the person was not aware of the grounds of
 
 7           the motion.  If the motion is granted, the contents of
 
 8           the intercepted wire or oral communication, or evidence
 
 9           derived therefrom, shall be treated as having been
 
10           obtained in violation of this part.  The court or other
 
11           official before whom the motion is made, upon the
 
12           filing of a motion by the aggrieved person, shall make
 
13           available to the aggrieved person or the aggrieved
 
14           person's counsel for inspection those portions of the
 
15           intercepted communication, or evidence derived
 
16           therefrom, the applications, orders, transcript of
 
17           hearing, and such additional evidence as the court
 
18           determines to be in the interests of justice.
 
19      (b)  In addition to any other right to appeal, the State
 
20           shall have the right to appeal from an order granting a
 
21           motion to suppress made under paragraph (a) or the
 
22           denial of an application for an order of approval, if
 
23           the attorney general or the prosecuting attorney of a
 

 
Page 41                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1           county of the State or their designated representatives
 
 2           certify to the judge or other official granting the
 
 3           motion or denying the application that the appeal is
 
 4           not taken for purposes of delay.  The appeal shall be
 
 5           taken within thirty days after the date the order was
 
 6           entered and shall be diligently prosecuted.  If the
 
 7           appeal is from an order denying an application for an
 
 8           order of authorization or approval, the appeal shall be
 
 9           in camera and in preference to all other pending
 
10           appeals in accordance with rules adopted by the supreme
 
11           court.
 
12      (c)  The remedies and sanctions described in this part with
 
13           respect to the interception of electronic
 
14           communications are the only judicial remedies and
 
15           sanctions for nonconstitutional violations of this part
 
16           involving such communications.
 
17      (11)  The requirements of subsections (1)(b)(ii) and (3)(d)
 
18 relating to the specification of the facilities from which, or
 
19 the place where, the communication is to be intercepted do not
 
20 apply if:
 
21      (a)  In the case of an application with respect to the
 
22           interception of an oral communication:
 
23           (i)  The application is by an investigative or law
 
24                enforcement officer and is approved by the
 

 
Page 42                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1                attorney general or a prosecuting attorney for a
 
 2                county of the State;
 
 3          (ii)  The application contains a full and complete
 
 4                statement as to why the specification is not
 
 5                practical and identifies the person committing the
 
 6                offense and whose communications are to be
 
 7                intercepted; and
 
 8         (iii)  The judge finds that the specification is not
 
 9                practical; or
 
10      (b)  In the case of an application with respect to a wire or
 
11           electronic communication:
 
12           (i)  The application is by an investigative or law
 
13                enforcement officer and is approved by the
 
14                attorney general or a prosecuting attorney for a
 
15                county of the State;
 
16          (ii)  The application identifies the person believed to
 
17                be committing the offense and whose communications
 
18                are to be intercepted and the applicant makes a
 
19                showing of a purpose, on the part of that person,
 
20                to thwart interception by changing facilities; and
 
21         (iii)  The judge finds that the purpose has been
 
22                adequately shown.
 
23      (12)  An interception of a communication under an order with
 

 
Page 43                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1 respect to which the requirements of subsections (1)(b)(ii) and
 
 2 (3)(d) do not apply by reason of subsection (11) shall not begin
 
 3 until the facilities from which, or the place where, the
 
 4 communication is to be intercepted is ascertained by the person
 
 5 implementing the interception order.  A provider of wire or
 
 6 electronic communications service that has received an order as
 
 7 provided for in subsection (11)(b) may move the court to modify
 
 8 or quash the order on the ground that its assistance with respect
 
 9 to the interception cannot be performed in a timely or reasonable
 
10 fashion.  The court, upon notice to the State, shall decide the
 
11 motion expeditiously.
 
12      803-I  Reports concerning intercepted wire, oral, or
 
13 electronic communications.(1)  Within thirty days after either
 
14 the expiration of an order or each extension thereof entered
 
15 under section 803-H, or the denial of an order approving an
 
16 interception, the issuing or denying judge shall report to the
 
17 administrative director of the courts:
 
18      (a)  The fact that an order or extension was applied for;
 
19      (b)  The kind of order or extension applied for, including
 
20           whether the order was an order with respect to which
 
21           the requirements of section 803-H(1)(b)(ii) and
 
22           803-H(3)(d) did not apply by reason of section
 
23           803-H(11);
 

 
Page 44                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1      (c)  The fact that the order or extension was granted as
 
 2           applied for, was modified, or was denied;
 
 3      (d)  The period of interceptions authorized by the order and
 
 4           the number and duration of any extensions of the order;
 
 5      (e)  The offense specified in the order or application, or
 
 6           extension of an order;
 
 7      (f)  The identity of the applying investigative or law
 
 8           enforcement officer and agency making the application
 
 9           and the person authorizing the application; and
 
10      (g)  The nature of the facilities from which or the place
 
11           where communications were to be intercepted.
 
12      (2)  By January 1 of each year, the attorney general and the
 
13 county prosecutors shall report to the administrative director of
 
14 the courts:
 
15      (a)  The information required by subsection (1) with respect
 
16           to each application for an order or extension made
 
17           during the preceding calendar year;
 
18      (b)  A general description of the interceptions made under
 
19           the order or extension, including:
 
20           (i)  The approximate nature and frequency of
 
21                incriminating communications intercepted;
 
22          (ii)  The approximate nature and frequency of other
 
23                communications intercepted;
 

 
Page 45                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1         (iii)  The approximate number of persons whose
 
 2                communications were intercepted; and
 
 3          (iv)  The approximate nature, amount, and cost of the
 
 4                personnel and other resources used in the
 
 5                interceptions;
 
 6      (c)  The number of arrests resulting from interceptions made
 
 7           under an order or extension, and the offenses for which
 
 8           the arrests were made;
 
 9      (d)  The number of trials resulting from the interceptions;
 
10      (e)  The number of motions to suppress made with respect to
 
11           the interceptions and the number granted or denied;
 
12      (f)  The number of convictions resulting from the
 
13           interceptions and the offenses for which the
 
14           convictions were obtained and a general assessment of
 
15           the importance of the interceptions;
 
16      (g)  The information required by paragraphs (b) through (f)
 
17           with respect to orders or extensions obtained in a
 
18           preceding calendar year; and
 
19      (h)  Other information required by the office of the
 
20           administrative director of the courts.
 
21      (3)  In March of each year, the administrative director of
 
22 the courts shall transmit to the Legislature a full and complete
 
23 report concerning the number of applications for orders
 

 
Page 46                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1 authorizing or approving the interception of wire, oral, or
 
 2 electronic communications pursuant to this part and the number of
 
 3 orders and extensions granted or denied pursuant to this part
 
 4 during the preceding calendar year.  The report shall include a
 
 5 summary and analysis of the data required to be filed with the
 
 6 administrative director of the courts by subsections (1) and (2).
 
 7 The administrative director of the courts may issue binding
 
 8 guidelines dealing with the content and form of the reports
 
 9 required to be filed by subsections (1) and (2).
 
10      803-J Recovery of civil damages authorized.  (1)  Except
 
11 as provided in section 803-B(2)(a)(ii), any person whose wire,
 
12 oral, or electronic communication is intercepted, disclosed, or
 
13 intentionally used in violation of this subpart, may recover in a
 
14 civil action such relief as may be appropriate from the person or
 
15 entity that engaged in the violation.
 
16      (2)  In an action under this section, appropriate relief
 
17 includes:
 
18      (a)  Preliminary and other equitable or declaratory relief
 
19           as may be appropriate;
 
20      (b)  Damages under subsection (3) and punitive damages in
 
21           appropriate cases; and
 
22      (c)  A reasonable attorney's fee and other litigation costs
 
23           reasonably incurred.
 

 
Page 47                                                    1501
                                     H.B. NO.           H.D.1
                                                        
                                                        

 
 1      (3)  (a)  In an action under this section, if the conduct in
 
 2           violation of this subpart is the private viewing of a
 
 3           private satellite video communication that is not
 
 4           scrambled or encrypted or if the communication is a
 
 5           radio communication that is transmitted on frequencies
 
 6           allocated under subpart D of part 74 of the rules of
 
 7           the Federal Communications Commission that is not
 
 8           scrambled or encrypted and the conduct is not for a
 
 9           tortious or illegal purpose or for purposes of direct
 
10           or indirect commercial advantage or private commercial
 
11           gain, then the court shall assess the damages as
 
12           follows:
 
13           (i)  If the person who engaged in that conduct has not
 
14                previously been enjoined under section 803-B(5)
 
15                and has not been found liable in a prior civil
 
16                action under this section, the court shall assess
 
17                the greater of the sum of actual damages suffered
 
18                by the plaintiff or statutory damages of not less
 
19                than $50 and not more than $500; or
 
20          (ii)  If, on one prior occasion, the person who engaged
 
21                in that conduct has been enjoined under section
 
22                803-B(5) or has been found liable in a civil
 
23                action under this section, the court shall assess
 

 
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 1                the greater of the sum of actual damages suffered
 
 2                by the plaintiff or statutory damages of not less
 
 3                than $100 and not more than $1,000.
 
 4      (b)  In any other action under this section, the court may
 
 5           assess as damages whichever is the greater of:
 
 6           (i)  The sum of the actual damages suffered by the
 
 7                plaintiff and any profits made by the violator as
 
 8                a result of the violation; or
 
 9          (ii)  Statutory damages of whichever is the greater of
 
10                $100 a day for each day of violation or $10,000.
 
11      (4)  A good faith reliance on:
 
12      (a)  A court warrant or order, a grand jury subpoena, a
 
13           legislative authorization, or a statutory
 
14           authorization;
 
15      (b)  A request of the attorney general or a prosecutor of a
 
16           county under section 803-H(7); or
 
17      (c)  A good faith determination that section 803-B(3)
 
18           permitted the conduct complained of;
 
19 is a complete defense against any civil or criminal action
 
20 brought under this part or any other law.
 
21      (5)  A civil action under this section shall not be
 
22 commenced later than two years after the date upon which the
 
23 claimant first has a reasonable opportunity to discover the
 

 
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 1 violation.
 
 2      803-K  Injunction against illegal interception.  Whenever
 
 3 it appears that any person is engaged or is about to engage in
 
 4 any act that constitutes or will constitute a felony violation of
 
 5 this part, the attorney general may initiate a civil action in a
 
 6 circuit court of this State to enjoin the violation.  The court
 
 7 shall proceed as soon as practicable to the hearing and
 
 8 determination of the action, and at any time before final
 
 9 determination, may enter a restraining order or prohibition or
 
10 take any other action as is warranted to prevent a continuing and
 
11 substantial injury to the State or to any person or class of
 
12 persons for whose protection the action is brought.  A proceeding
 
13 under this section is governed by the Hawaii rules of civil
 
14 procedure; except that, if an indictment, information, or
 
15 criminal complaint has been returned against the respondent,
 
16 discovery is governed by the Hawaii rules of penal procedure.
 
17                 Subpart C.  Stored Communications
 
18      803-L Unlawful access to stored communications.  (1)
 
19 Except as provided in subsection (3), whoever:
 
20      (a)  Intentionally accesses without authorization a facility
 
21           through which an electronic communication service is
 
22           provided; or
 
23      (b)  Intentionally exceeds an authorization to access that
 

 
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 1           facility; and
 
 2 thereby obtains, alters, or prevents authorized access to a wire
 
 3 or electronic communication, while it is in electronic storage in
 
 4 the system, shall be punished as provided in subsection (2).
 
 5      (2)  (a)  A violation of subsection (1) committed for
 
 6           purposes of commercial advantage, malicious destruction
 
 7           or damage, or private commercial gain shall be:
 
 8           (i)  A misdemeanor, if a first offense; or
 
 9          (ii)  A class C felony, for all subsequent offenses.
 
10      (b)  All other violations of subsection (1) shall be a
 
11           misdemeanor.
 
12      (3)  Subsections (1) and (2) do not apply with respect to
 
13 conduct authorized:
 
14      (a)  By the person or entity providing a wire or electronic
 
15           communications service;
 
16      (b)  By a user of that service with respect to a
 
17           communication of or intended for that user; or
 
18      (c)  By sections 803-H, 803-N, or 803-O.
 
19      803-M Disclosure of contents.(1)  Except as provided in
 
20 subsection (2):
 
21      (a)  A person or entity providing an electronic
 
22           communication service to the public shall not knowingly
 
23           divulge to any person or entity the contents of a
 

 
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 1           communication while in electronic storage by that
 
 2           service; and
 
 3      (b)  A person or entity providing remote computing service
 
 4           to the public shall not knowingly divulge to any person
 
 5           or entity the contents of any communication that is
 
 6           carried or maintained on that service:
 
 7           (i)  On behalf of, and received by means of electronic
 
 8                transmission from (or created by means of computer
 
 9                processing of communications received by means of
 
10                electronic transmission from), a subscriber or
 
11                customer of the service; and
 
12          (ii)  Solely for the purpose of providing storage or
 
13                computer processing services to the subscriber or
 
14                customer, if the provider is not authorized to
 
15                access the contents of those communications for
 
16                purposes of providing any services other than
 
17                storage or computer processing.
 
18      (2)  A person or entity may divulge the contents of a
 
19 communication:
 
20      (a)  To an addressee or intended recipient of the
 
21           communication or an agent of the addressee or intended
 
22           recipient;
 
23      (b)  As otherwise authorized in section 803-B(2)(a), 803-G,
 
24           or 803-N;
 

 
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 1      (c)  With the lawful consent of the originator or an
 
 2           addressee of intended recipient of the communication,
 
 3           or the subscriber in the case of remote computer
 
 4           service;
 
 5      (d)  To a person employed or authorized or whose facilities
 
 6           are used to forward the communication to its
 
 7           destination;
 
 8      (e)  As may be necessarily incident to the rendition of the
 
 9           service or to the protection of the rights or property
 
10           of the provider of that service; or
 
11      (f)  To a law enforcement agency if the contents:
 
12           (i)  Were inadvertently obtained by the service
 
13                provider; and
 
14          (ii)  Appear to pertain to the commission of a crime.
 
15      803-N Requirements for governmental access.(1)  A
 
16 governmental entity may require the disclosure by a provider of
 
17 electronic communication service of the contents of an electronic
 
18 communication that is in electronic storage in an electronic
 
19 communications system for one hundred and eighty days or less,
 
20 only pursuant to a warrant.  A governmental entity may require
 
21 the disclosure by a provider of electronic communications
 
22 services of the contents of an electronic communication that has
 
23 been in electronic storage in an electronic communications system
 

 
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 1 for more than one hundred and eighty days by the means available
 
 2 under subsection (2).
 
 3      (2)  (a)  A governmental entity may require a provider of
 
 4           remote computing service to disclose the contents of
 
 5           any electronic communication to which this paragraph is
 
 6           made applicable by paragraph (b):
 
 7           (i)  Without required notice to the subscriber or
 
 8                customer, if the governmental entity obtains a
 
 9                warrant; or
 
10          (ii)  With prior notice from the governmental entity to
 
11                the subscriber or customer, if the governmental
 
12                entity:
 
13                (A)  Uses an administrative subpoena authorized by
 
14                     statute or a grand jury or trial subpoena; or
 
15                (B)  Obtains a court order for the disclosure
 
16                     under subsection (4);
 
17           except that delayed notice may be given pursuant to
 
18           section 803-P.
 
19      (b)  Paragraph (a) applies with respect to any electronic
 
20           communication that is held or maintained on that
 
21           service:
 
22           (i)  On behalf of, and received by means of electronic
 
23                transmission from (or created by means of computer
 

 
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 1                processing of communications received by means of
 
 2                electronic transmission from), a subscriber or
 
 3                customer of the remote computing service; and
 
 4          (ii)  Solely for the purpose of providing storage or
 
 5                computer processing services to the subscriber or
 
 6                customer, if the provider is not authorized to
 
 7                access the contents of those communications for
 
 8                purposes of providing any services other than
 
 9                storage or computer processing.
 
10      (3)  (a)  (i)  Except as provided in subparagraph (ii), a
 
11                provider of electronic communication service or
 
12                remote computing service may disclose a record or
 
13                other information pertaining to a subscriber to or
 
14                customer of the service (not including the
 
15                contents of communications covered by subsection
 
16                (1) or (2)) to any person other than a
 
17                governmental entity.
 
18          (ii)  A provider of electronic communication service or
 
19                remote computing service shall disclose a record
 
20                or other information pertaining to a subscriber to
 
21                or customer of the service (not including the
 
22                contents of communications covered by subsection
 
23                (1) or (2)) to a governmental entity only when the
 

 
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 1                governmental entity:
 
 2                (A)  Obtains a warrant;
 
 3                (B)  Obtains a court order for the disclosure
 
 4                     under subsection (4); or
 
 5                (C)  Has the consent of the subscriber or customer
 
 6                     to the disclosure.
 
 7         (iii)  A provider of electronic communication service or
 
 8                remote computing service shall disclose to a
 
 9                governmental entity the name, address, local and
 
10                long distance telephone toll billing records,
 
11                telephone number or other subscriber number or
 
12                identity, and length of service of a subscriber to
 
13                or customer of the service and the types of
 
14                services the subscriber or customer utilized, when
 
15                the governmental entity uses an administrative
 
16                subpoena authorized by statute or a grand jury or
 
17                trial subpoena or any means available under
 
18                subparagraph (ii).
 
19      (b)  A governmental entity receiving records or information
 
20           under this subsection is not required to provide notice
 
21           to a subscriber or customer.
 
22      (4)  A court order for disclosure under subsection (2) or
 
23 (3) may be issued by a designated judge and shall issue only if
 

 
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 1 the governmental entity offers specific and articulable facts
 
 2 showing that there are reasonable grounds to believe that the
 
 3 contents of a wire or electronic communication, or the records or
 
 4 other information sought, are relevant and material to an ongoing
 
 5 criminal investigation.  A court issuing an order pursuant to
 
 6 this section, on a motion made promptly by the service provider,
 
 7 may quash or modify the order if the information or records
 
 8 requested are unusually voluminous in nature or compliance with
 
 9 the order otherwise would cause an undue burden on the provider.
 
10      (5)  No cause of action shall lie in any court against any
 
11 provider of wire or electronic communication service, its
 
12 officers, employees, agents, or other specified persons for
 
13 providing information, facilities, or assistance in accordance
 
14 with the terms of a court order, warrant, subpoena, or
 
15 certification under this subpart.
 
16      (6)  (a)  A provider of wire or electronic communication
 
17           services or a remote computing service, upon the
 
18           request of a governmental entity, shall take all
 
19           necessary steps to preserve records and other evidence
 
20           in its possession pending the issuance of a court order
 
21           or other process.
 
22      (b)  Records referred to in paragraph (a) shall be retained
 
23           for a period of ninety days, which shall be extended
 

 
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 1           for an additional ninety-day period upon a renewed
 
 2           request by the governmental entity.
 
 3      803-O Backup preservation.(1)  A governmental entity
 
 4 acting under section 803-N(2) may include in its subpoena or
 
 5 court order a requirement that the service provider to whom the
 
 6 request is directed create a backup copy of the contents of the
 
 7 electronic communications sought in order to preserve those
 
 8 communications.  Without notifying the subscriber or customer of
 
 9 the subpoena or court order, the service provider shall create
 
10 the backup copy as soon as practicable, consistent with its
 
11 regular business practices, and shall confirm to the governmental
 
12 entity that the backup copy has been made.  The backup copy shall
 
13 be created within two business days after receipt by the service
 
14 provider of the subpoena or court order.
 
15      (2)  Notice to the subscriber or customer shall be made by
 
16 the governmental entity within three days after receipt of the
 
17 confirmation, unless notice is delayed pursuant to section
 
18 803-P(1).
 
19      (3)  The service provider shall not destroy the backup copy
 
20 until the later of:
 
21      (a)  The delivery of the information; or
 
22      (b)  The resolution of any proceedings, including appeals of
 
23           any proceeding, concerning the State's subpoena or
 

 
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 1           court order.
 
 2      (4)  The service provider shall release the backup copy to
 
 3 the requesting governmental entity no sooner than fourteen days
 
 4 after the governmental entity's notice to the subscriber or
 
 5 customer, if the service provider:
 
 6      (a)  Has not received notice from the subscriber or customer
 
 7           that the subscriber or customer has challenged the
 
 8           governmental entity's request; or
 
 9      (b)  Has not initiated proceedings to challenge the request
 
10           of the governmental entity.
 
11      (5)  A governmental entity may seek to require the creation
 
12 of a backup copy under subsection (1) if, in its sole discretion,
 
13 the entity determines that there is reason to believe that
 
14 notification under section 803-N of the existence of the subpoena
 
15 or court order may result in destruction of or tampering with
 
16 evidence.  This determination is not subject to challenge by the
 
17 subscriber, customer, or service provider.
 
18      (6)  (a)  Within fourteen days after notice by the
 
19           governmental entity to the subscriber or customer under
 
20           subsection (2), the subscriber or customer may file a
 
21           motion to quash the subpoena or vacate the court order,
 
22           with copies served upon the governmental entity and
 
23           with written notice of the challenge to the service
 

 
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 1           provider.  A motion to vacate a court order shall be
 
 2           filed with the designated judge who issued the order.
 
 3           A motion to quash a subpoena shall be filed in the
 
 4           appropriate state court.  The motion or application
 
 5           shall contain an affidavit or sworn statement:
 
 6           (i)  Stating that the applicant is a customer or
 
 7                subscriber to the service from which the contents
 
 8                of electronic communications maintained for
 
 9                applicant have been sought; and
 
10          (ii)  Stating the applicant's reasons for believing that
 
11                the records sought are not relevant to a
 
12                legitimate law enforcement inquiry or that there
 
13                has not been substantial compliance with this
 
14                subpart in some other respect.
 
15      (b)  Service shall be made under this section upon a
 
16           governmental entity by delivering or mailing by
 
17           registered or certified mail a copy of the papers to
 
18           the person, office, or department specified in the
 
19           notice which the customer has received pursuant to this
 
20           subpart.  For the purposes of this section, the term
 
21           "delivery" has the meaning given that term in the
 
22           Hawaii rules of civil procedure.
 
23      (c)  If the court finds that the customer has complied with
 

 
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 1           paragraphs (a) and (b), the court shall order the
 
 2           governmental entity to file a sworn response, which may
 
 3           be filed in camera if the governmental entity includes
 
 4           in its response the reasons that make in camera review
 
 5           appropriate.  If the court is unable to determine the
 
 6           motion or application on the basis of the parties'
 
 7           initial allegations and response, the court may conduct
 
 8           additional proceedings as it deems appropriate.  All
 
 9           proceedings shall be completed and the motion or
 
10           application decided as soon as practicable after the
 
11           filing of the governmental entity's response.
 
12      (d)  If the court finds that the applicant is not the
 
13           subscriber or customer for whom the communications
 
14           sought by the governmental entity are maintained, or
 
15           that there is a reason to believe that the law
 
16           enforcement inquiry is legitimate and that the
 
17           communications sought are relevant to that inquiry, it
 
18           shall deny the motion or application and order the
 
19           process enforced.  If the court finds that the
 
20           applicant is the subscriber or customer for whom the
 
21           communications sought by the governmental entity are
 
22           maintained and that there is not a reason to believe
 
23           that the communications sought are relevant to a
 

 
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 1           legitimate law enforcement inquiry or that there has
 
 2           not been substantial compliance with this subpart, it
 
 3           shall order the process quashed.
 
 4      (e)  A court order denying a motion or application under
 
 5           this section shall not be deemed a final order, and no
 
 6           interlocutory appeal may be taken therefrom by the
 
 7           customer.
 
 8      803-P  Delayed notice.
 
 9      (1)  (a)  A governmental entity action under section
 
10           803-N(2) may:
 
11           (i)  When a court order is sought, include in the
 
12                application a request, which the court shall
 
13                grant, for an order delaying the notification
 
14                required under section 803-N(2) for a period not
 
15                to exceed ninety days, if the court determines
 
16                that there is reason to believe that notification
 
17                of the existence of the court order may have an
 
18                adverse result described in paragraph (b); or
 
19          (ii)  When an administrative subpoena authorized by
 
20                statute or a grand jury subpoena is obtained,
 
21                delay the notification required under section
 
22                803-N(2) for a period not to exceed ninety days
 
23                upon the execution of a written certification of a
 
24                supervisory official that there is reason to
 

 
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 1                believe that notification of the existence of the
 
 2                subpoena may have an adverse result described in
 
 3                paragraph (b).
 
 4      (b)  An adverse result for purposes of paragraph (a) is:
 
 5           (i)  Endangering the life or physical safety of an
 
 6                individual;
 
 7          (ii)  Flight from prosecution;
 
 8         (iii)  Destruction of or tampering with evidence;
 
 9          (iv)  Intimidation of potential witnesses; or
 
10           (v)  Otherwise seriously jeopardizing an investigation
 
11                or unduly delaying a trial.
 
12      (c)  The governmental entity shall maintain a true copy of
 
13           certification under paragraph (a)(ii).
 
14      (d)  Extensions of the delay of notification provided in
 
15           section 803-N of up to ninety days each may be granted
 
16           by the court upon application, or by certification by a
 
17           governmental entity, but only in accordance with
 
18           subsection (2).
 
19      (e)  Upon expiration of the period of delay of notification
 
20           under paragraph (a) or (d), the governmental entity
 
21           shall serve upon, or deliver by registered or first-
 
22           class mail to, the customer or subscriber a copy of the
 
23           process or request together with notice that:
 

 
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 1           (i)  States with reasonable specificity the nature of
 
 2                the law enforcement inquiry; and
 
 3          (ii)  Informs the customer or subscriber:
 
 4                (A)  That information maintained for the customer
 
 5                     or subscriber by the service provider named
 
 6                     in the process or request was supplied to or
 
 7                     requested by that governmental authority and
 
 8                     the date on which the supplying or request
 
 9                     took place;
 
10                (B)  That notification of the customer or
 
11                     subscriber was delayed;
 
12                (C)  What governmental entity or court made the
 
13                     certification or determination pursuant to
 
14                     which that delay was made; and
 
15                (D)  Which provision of this part allowed the
 
16                     delay.
 
17      (f)  As used in this subsection, the term "supervisory
 
18           official" means the investigative agent in charge or
 
19           assistant investigative agent in charge or an
 
20           equivalent of an investigating agency's headquarters or
 
21           regional office or the chief prosecuting attorney or
 
22           the first deputy prosecuting attorney or an equivalent
 
23           of a prosecuting attorney's headquarters or regional
 

 
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 1           office.
 
 2      (2)  A governmental entity acting under section 803-N, when
 
 3 it is not required to notify the subscriber or customer under
 
 4 section 803-N(2)(a)(i), or to the extent that it may delay notice
 
 5 pursuant to subsection (1), may apply to a designated judge for
 
 6 an order commanding a provider of electronic communications
 
 7 service or remote computing service to whom a warrant, subpoena,
 
 8 or court order is directed, for such period as the court deems
 
 9 appropriate, not to notify any other person of the existence of
 
10 the warrant, subpoena, or court order.  The court shall enter the
 
11 order if it determines that there is reason to believe that
 
12 notification of the existence of the warrant, subpoena, or court
 
13 order will result in:
 
14      (a)  Endangering the life or physical safety of an
 
15           individual;
 
16      (b)  Flight from prosecution;
 
17      (c)  Destruction of or tampering with evidence;
 
18      (d)  Intimidation of potential witnesses; or
 
19      (e)  Otherwise seriously jeopardizing an investigation or
 
20           unduly delaying a trial.
 
21      803-Q Cost reimbursement.  (1)  Except as otherwise
 
22 provided in subsection (3), a governmental entity obtaining the
 
23 contents of communications, records, or other information under
 

 
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 1 section 803-M, 803-N, or 803-O shall pay to the person or entity
 
 2 assembling or providing the information a fee for reimbursement
 
 3 for costs that are reasonably necessary and that have been
 
 4 directly incurred in searching for, assembling, reproducing, or
 
 5 otherwise providing the information.  The reimbursable costs
 
 6 shall include any costs due to necessary disruption of normal
 
 7 operations of any electronic communication service or remote
 
 8 computing service in which the information may be stored.
 
 9      (2)  The amount of the fee provided by subsection (1) shall
 
10 be as mutually agreed by the governmental entity and the person
 
11 or entity providing the information or, in the absence of
 
12 agreement, shall be as determined by the court that issued the
 
13 order for production of the information or the court before which
 
14 a criminal prosecution relating to the information would be
 
15 brought, if no court order was issued for production of the
 
16 information.
 
17      (3)  The requirement of subsection (1) does not apply with
 
18 respect to records or other information maintained by a
 
19 communications common carrier that relate to telephone toll
 
20 records and telephone listings obtained under section 803-N.
 
21 However, the court may order a payment as described in subsection
 
22 (1), if the court determines the information required is
 
23 unusually voluminous in nature or otherwise caused an undue
 

 
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 1 burden on the provider.
 
 2      803-R Civil action.(1)  Except as provided in section
 
 3 803-N(5), any provider of electronic communication service,
 
 4 subscriber, or other person aggrieved by any violation relating
 
 5 to this subpart in which the conduct constituting the violation
 
 6 is engaged in with a knowing or intentional state of mind, may
 
 7 recover such relief as may be appropriate, in a civil action,
 
 8 from the person or entity that engaged in that violation.
 
 9      (2)  In a civil action under this section, appropriate
 
10 relief includes:
 
11      (a)  Such preliminary and other equitable or declaratory
 
12           relief as may be appropriate;
 
13      (b)  Damages under subsection (3); and
 
14      (c)  A reasonable attorney's fee and other litigation costs
 
15           reasonably incurred.
 
16      (3)  The court may assess as damages in a civil action under
 
17 this section the sum of the actual damages suffered by the
 
18 plaintiff and any profits made by the violator as a result of the
 
19 violation, but in no case shall a person entitled to recover
 
20 receive less than the sum of $1,000.  If the violation is knowing
 
21 or intentional, the court may assess punitive damages.  In the
 
22 case of a successful action to enforce liability under this
 
23 section, the court may assess the costs of the action, together
 

 
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 1 with reasonable attorney's fees determined by the court.
 
 2      (4)  If a court determines that any state or county agency
 
 3 or department has violated this subpart and the court finds that
 
 4 the circumstances surrounding the violation raise the question
 
 5 whether an officer or employee of the state or county agency or
 
 6 department acted knowingly or intentionally with respect to the
 
 7 violation, the agency or department concerned promptly shall
 
 8 initiate a proceeding to determine whether disciplinary action is
 
 9 warranted against the officer or employee.
 
10      (5)  A good faith reliance on:
 
11      (a)  A court warrant or order, a grand jury subpoena, a
 
12           legislative authorization, or a statutory
 
13           authorization;
 
14      (b)  A request of an investigative or law enforcement
 
15           officer under section 803-H(7); or
 
16      (c)  A good faith determination that section 803-B(3)
 
17           permitted the conduct complained of;
 
18 is a complete defense to any civil or criminal action brought
 
19 pursuant to this subpart or any other law.
 
20      (6)  A civil action under this section may not be commenced
 
21 later than two years after the date upon which the claimant first
 
22 discovered or had a reasonable opportunity to discover the
 
23 violation.
 

 
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 1      803-S Exclusivity of remedies.  The remedies and sanctions
 
 2 described in this subpart are the only judicial remedies and
 
 3 sanctions for nonconstitutional violation of this subpart.
 
 4                Subpart D.  Mobile Tracking Devices
 
 5      803-T  Application for authorization to install and use a
 
 6 mobile tracking device.(1)  A designated judge is empowered to
 
 7 issue a warrant or other order for the installation of a mobile
 
 8 tracking device.  The order may authorize the use of that device
 
 9 within the jurisdiction of the court and outside that
 
10 jurisdiction, if the device is installed in that jurisdiction.
 
11      (2)  Upon application to the designated judge for a court
 
12 order, the designated judge should be satisfied that there are
 
13 sufficient facts and circumstances contained within the
 
14 application to establish probable cause to believe that the use
 
15 of a mobile tracking device will discover the fruits,
 
16 instrumentalities, or evidence of a crime or is relevant to an
 
17 ongoing criminal investigation.
 
18      (3)  If the designated judge is so satisfied, the judge
 
19 shall issue an order specifying:
 
20      (a)  The identity, if known, of the person who is the
 
21           subject of the investigation;
 
22      (b)  The number of mobile tracking devices to be used and
 
23           the geographical locations where the devices are to be
 

 
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 1           installed; and
 
 2      (c)  The identity, if known, of any person who may have a
 
 3           privacy interest in the point of installation of the
 
 4           mobile tracking device.
 
 5      (4)  An order authorizing installation and use of a mobile
 
 6 tracking device shall not exceed sixty days.  Extensions of the
 
 7 orders may be granted only upon reapplication establishing
 
 8 probable cause to justify the continued use of a mobile tracking
 
 9 device.  The period of the extension shall not exceed sixty days.
 
10      (5)  The order shall direct that the order be sealed until
 
11 otherwise directed by the court.
 
12      803-U General prohibition on pen register and trap and
 
13 trace device use; exception.(1)  Except as provided in this
 
14 section, no person shall install or use a pen register or a trap
 
15 and trace device without first obtaining a court order under
 
16 section 803-W.
 
17      (2)  The prohibition of subsection (1) does not apply with
 
18 respect to the use of a pen register or a trap and trace device
 
19 by a provider of electronic or wire communication service:
 
20      (a)  Relating to the operation, maintenance, and testing of
 
21           a wire or electronic communication service or to the
 
22           protection of the rights or property of the provider or
 
23           to the protection of users of that service from abuse
 

 
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 1           of service or unlawful use of service;
 
 2      (b)  To record the fact that a wire or electronic
 
 3           communication was initiated or completed in order to
 
 4           protect the provider, another provider furnishing
 
 5           service toward the completion of the wire
 
 6           communication, or a user of that service from
 
 7           fraudulent, unlawful, or abusive use of service; or
 
 8      (c)  Where the consent of the user of that service has been
 
 9           obtained.
 
10      (3)  A government agency authorized to install and use a pen
 
11 register under this subpart shall use technology reasonably
 
12 available to it that restricts the recording or decoding of
 
13 electronic or other impulses to the dialing and signaling
 
14 information utilized in call processing.
 
15      (4)  Whoever knowingly violates subsection (1) shall be
 
16 guilty of a misdemeanor.
 
17      803-V  Application for an order for a pen register or a
 
18 trap and trace device.(1)  The attorney general or the
 
19 prosecuting attorney for each county, or a subordinate designated
 
20 to act in either's absence or incapacity, or an investigative or
 
21 law enforcement officer may make application for an order or an
 
22 extension of an order under section 803-W authorizing or
 
23 approving the installation and use of a pen register or a trap
 

 
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 1 and trace device under this subpart, in writing under oath or
 
 2 equivalent affirmation, to a designated judge.
 
 3      (2)  An application under subsection (1) shall include:
 
 4      (a)  The identity of the official or the investigative or
 
 5           law enforcement officer making the application and the
 
 6           identity of the law enforcement agency conducting the
 
 7           investigation; and
 
 8      (b)  A certification by the applicant that the information
 
 9           likely to be obtained is relevant to an ongoing
 
10           criminal investigation being conducted by that agency.
 
11      803-W Issuance of an order for a pen register or a trap
 
12 and trace device.  (1)  Upon an application made under section
 
13 803-V, the court shall enter an ex parte order authorizing the
 
14 installation and use of a pen register or a trap and trace device
 
15 within the jurisdiction of the court, if the court finds that the
 
16 official or the investigative or law enforcement officer has
 
17 certified to the court that the information likely to be obtained
 
18 by the installation and use is relevant to an ongoing criminal
 
19 investigation.
 
20      (2)  An order issued under this section:
 
21      (a)  Shall specify:
 
22           (i)  The identity, if known, of the person to whom is
 
23                leased or in whose name is listed the telephone
 
24                line to which the pen register or trap and trace
 

 
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 1                device is to be attached;
 
 2          (ii)  The identity, if known, of the person who is the
 
 3                subject of the criminal investigation;
 
 4         (iii)  The number and, if known, physical location of the
 
 5                telephone line to which the pen register or trap
 
 6                and trace device is to be attached and, in the
 
 7                case of a trap and trace device, the geographic
 
 8                limits of the trap and trace order; and
 
 9          (iv)  A statement of the offense to which the
 
10                information likely to be obtained by the pen
 
11                register or trap and trace device relates; and
 
12      (b)  Shall direct, upon the request of the applicant, the
 
13           furnishing of information, facilities, and technical
 
14           assistance necessary to accomplish the installation of
 
15           the pen register or trap and trace device under section
 
16           803-X.
 
17      (3)  (a)  An order issued under this subpart shall authorize
 
18           the installation and use of a pen register or a trap
 
19           and trace device for a period not to exceed sixty days.
 
20      (b)  Extensions of an order may be granted, but only upon an
 
21           application for an order under section 803-V and upon
 
22           the judicial finding required by subsection (1).  The
 
23           period of extension shall be for a period not to exceed
 

 
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 1           sixty days.
 
 2      (4)  An order authorizing or approving the installation and
 
 3 use of a pen register or a trap and trace device shall direct
 
 4 that:
 
 5      (a)  The order be sealed until otherwise ordered by the
 
 6           court; and
 
 7      (b)  The person owning or leasing the line to which the pen
 
 8           register or a trap and trace device is attached, or who
 
 9           has been ordered by the court to provide assistance to
 
10           the applicant, not disclose the existence of the pen
 
11           register or trap and trace device or the existence of
 
12           the investigation to the listed subscriber or to any
 
13           other person, unless or until otherwise ordered by the
 
14           court.
 
15      803-X Assistance in installation and use of a pen register
 
16 or a trap and trace device.  (1)  Upon the request of the
 
17 attorney general or the county prosecuting attorney, or a
 
18 subordinate designated to act in either's absence or incapacity,
 
19 or an investigative or law enforcement officer authorized to
 
20 install and use a pen register under this subpart, a provider of
 
21 wire or electronic communication service, landlord, custodian, or
 
22 other person shall furnish the investigative or law enforcement
 
23 officer forthwith all information, facilities, and technical
 

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

 
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 1 of a law enforcement agency, designated in the court order, at
 
 2 reasonable intervals during regular business hours for the
 
 3 duration of the order.
 
 4      (3)  A provider of a wire or electronic communication
 
 5 service, landlord, custodian, or other person who furnishes
 
 6 facilities or technical assistance pursuant to this section shall
 
 7 be reasonably compensated for the reasonable expenses incurred in
 
 8 providing the facilities and assistance.
 
 9      (4)  No cause of action shall lie in any court against any
 
10 provider of a wire or electronic communication service, its
 
11 officers, employees, agents, or other specified persons for
 
12 providing information, facilities, or assistance in accordance
 
13 with the terms of a court order under this part or request
 
14 pursuant to section 803-Y.
 
15      (5)  A good faith reliance on a court order under this part,
 
16 a request pursuant to section 803-Y, a legislative authorization,
 
17 or a statutory authorization is a complete defense against any
 
18 civil or criminal action brought under this part or any other
 
19 law.
 
20      803-Y Emergency pen register and trap and trace device
 
21 installation.(1)  Notwithstanding any other provision of this
 
22 part to the contrary, any investigative or law enforcement
 
23 officer, specially designated by the attorney general of this
 

 
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 1 State or the prosecuting attorney for a county of the State, who
 
 2 reasonably determines that:
 
 3      (a)  An emergency situation exists that involves:
 
 4           (i)  Immediate danger of death or serious bodily injury
 
 5                to any person; or
 
 6          (ii)  Conspiratorial activities characteristic of
 
 7                organized crime and
 
 8           that requires the installation and use of pen register
 
 9           or a trap and trace device before an order authorizing
 
10           the installation and use can, with due diligence, be
 
11           obtained, and
 
12      (b)  There are grounds upon which an order could be entered
 
13           under this subpart to authorize the installation and
 
14           use;
 
15 may order installed and use a pen register or trap and trace
 
16 device if, within forty-eight hours after the installation has
 
17 occurred or begins to occur, an order approving the installation
 
18 or use is issued in accordance with section 803-W.
 
19      (2)  In the absence of an authorizing order, the use shall
 
20 immediately terminate when the information sought is obtained,
 
21 when the application for the order is denied, or when forty-eight
 
22 hours have lapsed since the installation of the pen register or
 
23 trap and trace device, whichever is earlier.
 

 
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 1      (3)  The knowing installation or use by any investigative or
 
 2 law enforcement officer of a pen register or trap and trace
 
 3 device pursuant to subsection (1) without application for the
 
 4 authorizing order within forty-eight hours of the installation
 
 5 shall constitute a violation of this part.
 
 6      (4)  A provider of a wire or electronic service, landlord,
 
 7 custodian, or other person who furnished facilities or technical
 
 8 assistance pursuant to this section shall be compensated for the
 
 9 reasonable expenses incurred in providing the facilities and
 
10 assistance.
 
11      803-Z  Reports concerning pen registers and trap and trace
 
12 devices.  The attorney general shall annually report to the
 
13 legislature on the number of pen register orders and orders for
 
14 trap and trace devices applied for by law enforcement agencies of
 
15 the State."
 
16      SECTION 2.  Section 641-13, Hawaii Revised Statutes, is
 
17 amended to read as follows:
 
18      "641-13  By State in criminal cases.  An appeal may be
 
19 taken by and on behalf of the State from the district or circuit
 
20 courts to the supreme court, subject to chapter 602, in all
 
21 criminal cases, in the following instances:
 
22      (1)  From an order or judgment quashing, setting aside, or
 
23           sustaining a motion to dismiss[,] any indictment or
 

 
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 1           complaint or any count thereof;
 
 2      (2)  From an order or judgment[,] sustaining a special plea
 
 3           in bar[,] or dismissing the case where the defendant
 
 4           has not been put in jeopardy;
 
 5      (3)  From an order granting a new trial;
 
 6      (4)  From an order arresting judgment;
 
 7      (5)  From a ruling on a question of law adverse to the
 
 8           State, where the defendant was convicted and appeals
 
 9           from the judgment;
 
10      (6)  From the sentence, on the ground that it is illegal;
 
11      (7)  From a pretrial order granting a motion for the
 
12           suppression of evidence, including a confession or
 
13           admission, or the return of property in which case the
 
14           intermediate appellate court or the supreme court, as
 
15           the case may be, shall give priority to [such an] the
 
16           appeal and the order shall be stayed pending the
 
17           outcome of the appeal;
 
18      (8)  From an order denying a request by the State for
 
19           protective order for nondisclosure of witness for
 
20           [their] reason of personal safety under Rule 16(e)(4)
 
21           of the Hawaii Rules of Penal Procedure, in which case
 
22           the intermediate appellate court or the supreme court,
 
23           as the case may be, shall give priority to [such] the
 

 
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 1           appeal and the order shall be stayed pending outcome of
 
 2           [such] the appeal;
 
 3      (9)  From a judgment of acquittal following a jury verdict
 
 4           of guilty[.]; and
 
 5     (10)  From a denial of an application for an order of
 
 6           approval or authorization of the interception of a
 
 7           wire, oral, or electronic communication pursuant to
 
 8           section 803-H."
 
 9      SECTION 3.  Chapter 803, part IV, Hawaii Revised Statutes,
 
10 is repealed.
 
11      SECTION 4.  In codifying the new part added to chapter 803,
 
12 Hawaii Revised Statutes, by section 1 of this Act, the revisor of
 
13 statutes shall substitute appropriate section numbers for the
 
14 letters used in the new sections' designations in this Act.
 
15      SECTION 5.  If any provision of this Act, or the application
 
16 thereof to any person or circumstance is held invalid, the
 
17 invalidity does not affect other provisions or applications of
 
18 the Act which can be given effect without the invalid provision
 
19 or application, and to this end the provisions of this Act are
 
20 severable.
 
21      SECTION 6.  This Act does not affect rights and duties that
 
22 matured, penalties that were incurred, and proceedings that were
 
23 begun, before its effective date.
 

 
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 1      SECTION 7.  Statutory material to be repealed is bracketed.
 
 2 New statutory material is underscored.
 
 3      SECTION 8.  This Act shall take effect upon its approval.