Report Title:

Electronic surveillance

Description:

Conforms Hawaii's slectronic surveillance laws to federal laws controlling electronic surveillance. Establishes and funds a surveillance review unit within the Department.

THE SENATE

S.B. NO.

2694

TWENTY-FIRST LEGISLATURE, 2002

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO ELECTRONIC SURVEILLANCE.

 

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

SECTION 1. Chapter 28, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"28- Surveillance review unit. There is established in the department of the attorney general a surveillance review unit, which shall be responsible for reviewing all applications for interception of wire, oral, or electronic communications under chapter 803 prior to their submittal to a district court judge or designated judge, regardless of whether submitted by county or state investigative or law enforcement officers. A surveillance review unit attorney shall review the application in a timely manner to ensure it meets the requirements of part of chapter 803, and applicable law and recommend any necessary additions or changes to the application. Thereafter, the surveillance review unit attorney shall prepare a written memorandum recommending approval or disapproval of the application, which shall be submitted to the district court judge or designated judge with the application. The attorney general shall establish standards and procedures for the timely review of these applications to ensure continuity and conformity with applicable law."

SECTION 2. Chapter 803, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"PART . WIRETAPPING AND ELECTRONIC SURVEILLANCE

A. GENERAL PROVISIONS

803-A Definitions. As used in this part unless the context clearly requires otherwise:

"Aggrieved person" means a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.

"Aural transfer" means a transfer containing the human voice at any point between and including the point of origin and the point of reception.

"Bait vehicle" means any vehicle used by law enforcement to further an investigation of and deter unauthorized entry into a motor vehicle or unauthorized control of a propelled vehicle.

"Communication common carrier" means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in intrastate, interstate, or foreign radio transmission of energy, except where reference is made to communication common carriers not subject to this part; but a person engaged in radio broadcasting, to the extent the person is so engaged, shall not be deemed a communication common carrier.

"Contents", when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication.

"Designated judge" means a circuit court judge designated by the chief justice of the Hawaii supreme court to issue orders under this part. If a circuit court judge has not been designated by the chief justice or is unavailable, "designated judge" shall include any circuit court judge or district court judge.

"Electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system but does not include:

(1) Any wire or oral communication;

(2) Any communication made through a tone only paging device;

(3) Any communication from a tracking device; or

(4) Electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds.

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

"Electronic communication system" means any wire, radio, electromagnetic, photooptical, or photoelectronic facilities for the transmission of electronic communications and any computer facilities or related electronic equipment for the electronic storage of these communications.

"Electronic, mechanical, or other device" means any device or apparatus that can be used to intercept a wire, oral, or electronic communication other than:

(1) Any telephone or telegraph instrument, equipment, or facility, or any component thereof:

(A) Furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of the service and used in the ordinary course of its business; or

(B) Being used by a provider of wire or electronic communication service in the ordinary course of its business or by an investigative or law enforcement officer in the ordinary course of the officer's duties;

(2) A hearing aid or similar device being used to correct subnormal hearing to a level not better than normal.

"Electronic storage" means:

(1) Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and

(2) Any storage of the communication by an electronic communication service for purposes of backup protection of the communication.

"Intercept" means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.

"Investigative or law enforcement officer" means any officer of the State or county or of the United States, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this part.

"Oral communication" means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation, but the term does not include any electronic

communication.

"Organized crime" means any combination or conspiracy to

engage in criminal activity.

"Pen register" means a device that records or decodes electronic or other impulses that identify the numbers dialed or otherwise transmitted on the telephone line to which the device is attached, but the term does not include any device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by the provider or any device used by a provider or customer of a wire communication service for cost accounting or other similar purposes in the ordinary course of its business.

"Person" means any employee or agent of the United States or any state or county and any individual, partnership, association, joint stock company, trust, or corporation.

"Readily accessible to the general public" means, with respect to a radio communication, that the communication is not:

(1) Scrambled or encrypted;

(2) Transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of the communication;

(3) Carried on a subcarrier or other signal subsidiary to a radio transmission;

(4) Transmitted over a communication system provided by a common carrier, unless the communication is a tone only paging system communication; or

(5) Transmitted on frequencies allocated under part 25, subpart D, E, or F of part 74, or part 94 of the Rules of the Federal Communications Commission, unless, in the case of a communication transmitted on a frequency allocated under part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio.

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

"Tracking device" means an electronic or mechanical device that permits the tracking of the movement of a person or object, but does not include such a device when installed:

(1) In a motor vehicle or other vehicle by or with the permission of the owner or person in lawful possession of the motor vehicle or other vehicle for the purpose of tracking the movement of the motor vehicle or other vehicle; or

(2) By or at the request of a police department or law enforcement agency in a bait vehicle.

"Trap and trace device" means a device that captures the incoming electronic or other impulses that identify the originating number of an instrument or device from which a wire or electronic communication was transmitted.

"User" means any person or entity who:

(1) Uses an electronic communication service; and

(2) Is duly authorized by the provider of the service to engage in such use.

"Wire communication" means any aural transfer made, in whole or in part, through the use of facilities for the transmission of communications by the aid of wire, cable, or other similar connection between the point of origin and the point of reception (including the use of such connection in a switching station). The term "wire communication" includes any electronic storage of the communication.

B. WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS

803-B Prohibited interception and disclosure of wire, oral, or electronic communications. (a) A person not entitled to an exception within this section commits the offense of prohibited interception and disclosure of wire, oral, or electronic communications if the person:

(1) Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication;

(2) Intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:

(A) The device is affixed to, or otherwise transmits a signal through, a wire, cable, or other similar connection used in wire communication; or

(B) The device transmits communications by radio or interferes with the transmission of the communication;

(3) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this part;

(4) Intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this part; or

(5) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, intercepted by means authorized by subsection (b)(1)(A) or (2) or (3) or section 803-H or 803-J; and

(A) Either knowing or having reason to know that the information was obtained through the interception of the communication in connection with a criminal investigation or having obtained or received the information in connection with a criminal investigation; and

(B) With intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation.

(b) Exceptions:

(1) (A) It shall not be unlawful under this part for an operator of a switchboard or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of employment while engaged in any activity that is a necessary incident to the rendition of the operator's, officer's, employee's, or agent's service, or to the protection of the rights or property of the provider of that service; provided that a provider of wire communication service to the public shall not utilize service observing or random monitoring, except for mechanical or service quality control checks.

(B) Notwithstanding any other law to the contrary, providers of wire or electronic communication service and their officers, employees, and agents, landlords, custodians, or other persons are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, if the provider or its officers, employees, or agents, landlord, custodian, or other specified person has been provided with:

(i) A court order directing such assistance, signed by the designated judge; or

(ii) A certification in writing, by a person specified in section 803-J(g) or the Attorney General of the United States, the Deputy Attorney General of the United States, the Associate Attorney General of the United States, the attorney general of the State of Hawaii, or the prosecuting attorney for a county of the State of Hawaii, that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required, setting forth the period of time during which the provision of the information, facilities, or technical assistance is authorized and specifying the information, facilities, or technical assistance required.

No provider of wire or electronic communication service, officer, employee, or agent thereof, or landlord, custodian, or other specified person shall disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance with respect to which the person has been furnished an order or certification under this subpart, except as may otherwise be required by legal process and then only after prior notification to the party that provided the court order or certification. Any such disclosure shall render the person liable for the civil damages provided for in section 803-L. No cause of action shall lie in an order against any provider of wire or electronic communication service or its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order or certification under this part.

(2) It shall not be unlawful under this part for an officer, employee, or agent of the Federal Communications Commission, in the normal course of the officer's, employee's, or agent's employment and in discharge of the monitoring responsibilities exercised by the Commission in the enforcement of chapter 5 of title 47 of the United States Code, to intercept a wire or electronic communication or oral communication transmitted by radio or to disclose or use the information thereby obtained.

(3) It shall not be unlawful under this part for a person acting under color of law to intercept a wire, oral, or electronic communication when the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.

(4) It shall not be unlawful under this part for a person not acting under color of law to intercept a wire, oral, or electronic communication when the person is a party to the communication or when one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of this State.

(5) It shall not be unlawful under this part:

(A) For any person to intercept or access an electronic communication made through an electronic communication system that is configured so that the electronic communication is readily accessible to the general public;

(B) For any person to intercept any radio communication that is transmitted:

(i) By any station for the use of the general public or that relates to ships, aircraft, vehicles, or persons in distress;

(ii) By any governmental, law enforcement, civil defense, private land mobile, or public safety communications system, including police and fire, readily accessible to the general public;

(iii) By a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or

(iv) By any marine or aeronautical communications system;

(C) For any person to engage in any conduct that:

(i) Is prohibited by section 633 of the Communications Act of 1934 (47 U.S.C. 553); or

(ii) Is excepted from the application of section 705(a) of the Communications Act of 1934 by section 705(b) of that Act (47 U.S.C. 605);

(D) For any person to intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of the interference; or

(E) For other users of the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of the system, if the communication is not scrambled or encrypted.

(6) It shall not be unlawful under this part:

(A) To use a pen register or a trap and trace device as those terms are defined in this part; or

(B) For a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service from fraudulent, unlawful, or abusive use of the service.

(c) Electronic service communication providers.

(1) Except as provided in paragraph (2), a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than a communication to the person or entity or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of the communication or an agent of the addressee or intended recipient.

(2) A person or entity providing electronic communication service to the public may divulge the contents of any such communication:

(A) As otherwise authorized in subsection (b)(1) or section 803-I;

(B) With the lawful consent of the originator or any addressee or intended recipient of the communication;

(C) To a person employed or authorized, or whose facilities are used, to forward the communication to its destination; or

(D) That was inadvertently obtained by the service provider and that appears to pertain to the commission of a crime, if the divulgence is made to a law enforcement agency.

(d) Prohibited interception and disclosure of wire, oral, or electronic communications is a class C felony.

803-C Defenses. (a) In a prosecution for prohibited interception and disclosure of wire, oral, or electronic communications, it is a defense that reduces the penalty to a misdemeanor if the offense is a first offense and is not for a tortious or illegal purpose, or for purposes of direct or indirect commercial advantage or private commercial gain, and the wire or electronic communication with respect to which the offense is a radio communication that is not scrambled, encrypted, or transmitted using modulation techniques, the essential parameters of which have been withheld from the public with the intention of preserving the privacy of such communication.

(b) In a prosecution for prohibited interception and disclosure of wire, oral, or electronic communications, it is a defense that the conduct with which the defendant is charged is not for the purpose of direct or indirect commercial advantage or private gain and consists of or relates to the interception of a satellite transmission that is not encrypted or scrambled and that is transmitted:

(1) To a broadcasting station for purposes of retransmission to the general public; or

(2) As an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmissions or telephone calls.

803-D Civil actions. (a) If the intercepted communication is:

(1) A private satellite video communication that is not scrambled or encrypted and the conduct in violation of this part is the private viewing of that communication and is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain; or

(2) A radio communication that is transmitted on frequencies allocated under subpart D of part 74 of the rules of the Federal Communications Commission that is not scrambled or encrypted and the conduct in violation of this part is for tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain,

then the person who engages in such conduct shall be subject to suit by the State.

(b) In an action under this section:

(1) If the violation under this subpart is a first offense for the person under subsection (d)(1) and the person has not been found liable in a civil action under section 803-L, the State shall be entitled to appropriate injunctive relief; or

(2) If the violation of this subpart is a second or subsequent offense under subsection (d)(1) or the person has been found liable in any prior civil action under section 803-L, the person shall be subject to a mandatory $500 civil fine.

(c) The court may use any means within its authority to enforce an injunction issued under this section and shall impose a civil fine of not less than $500 for each violation of the injunction.

803-E Prohibited manufacture, distribution, possession, or advertising of wire, oral, or electronic communication intercepting device. (a) A person not entitled to an exception under this section commits the offense of prohibited manufacture, distribution, possession, or advertising of wire, oral, or electronic communication intercepting device if the person intentionally:

(1) Sends through the mail or sends or carries in intrastate, interstate, or foreign commerce any electronic, mechanical, or other device, knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications;

(2) Manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications and that the device or any component thereof has been or will be sent through the mail or transported in intrastate, interstate, or foreign commerce; or

(3) Places in any newspaper, magazine, handbill, or other publication any advertisement of:

(A) Any electronic, mechanical, or other device, knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications; or

(B) Any other electronic, mechanical, or other device, where the advertisement promotes the use of the device for the purpose of the surreptitious interception of wire, oral, or electronic communications,

knowing or having reason to know that the advertisement will be sent through the mail or transported in intrastate, interstate, or foreign commerce.

(b) Exceptions. It shall not be unlawful under this section for:

(1) A provider of wire or electronic communication service or an officer, agent, or employee of, or a person under contract with, such a provider, in the normal course of the business of providing that wire or electronic communication service; or

(2) An officer, agent, or employee of, or a person under contract with, the State or a county, in the normal course of the activities of the State or a county; or

(3) A person acting under color of law to send through the mail, send or carry in intrastate, interstate, or foreign commerce, or manufacture, assemble, possess, or sell any electronic, mechanical, or other device, knowing or having reason to know that the design of the device renders it primarily useful for the purpose of surreptitious interception of wire, oral, or electronic communications.

(c) Prohibited manufacture, distribution, possession, or advertising of wire, oral, or electronic communication intercepting device is a class C felony.

803-F Forfeiture of wire, oral, or electronic communication intercepting devices. Any electronic, mechanical, or other device used, sent, carried, manufactured, assembled, possessed, sold, or advertised, or otherwise distributed in violation of this part shall be subject to seizure and forfeiture under chapter 712A.

803-G Prohibition of use as evidence of intercepted wire or oral communications. Unless found to be admissible under the doctrine of inevitable discovery, no part of the contents of any wire or oral communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the State or a county, if the disclosure of that information would be in violation of this part.

803-H Authorization for interception of wire, oral, or electronic communications. The attorney general, a designated deputy attorney general in the attorney general's absence or incapacity, the prosecuting attorney of each county, or a designated deputy prosecuting attorney in the prosecuting attorney's absence or incapacity, may authorize an application to a designated judge for, and the judge may grant, in conformity with section 803-J, an order authorizing or approving the interception of wire or oral communications, by an investigative or law enforcement officer or agency having responsibility for the investigation of the offense as to which the application is made, if the interception might provide or has provided evidence of:

(1) Murder;

(2) Kidnapping;

(3) Felony criminal property damage involving the danger of serious bodily injury as defined in section 707-700;

(4) Organized crime;

(5) Extortion;

(6) Bribery of a juror, of a witness, or of a police officer;

(7) Receiving stolen property;

(8) Gambling;

(9) Distribution of dangerous, harmful, or detrimental drugs;

(10) Money laundering;

(11) Racketeering activity as defined in section 842-1;

(l2) A criminal offense against a victim who is a minor or a sexually violent offense as those terms are defined in section 846E-1;

(l3) Violations relating to firearms or explosives;

(14) Any felony violation of this part;

(15) Any conspiracy to commit any offense described in this section; or

(16) The location of any fugitive from justice charged with an offense described in this section.

803-I Authorization for disclosure and use of intercepted wire, oral, or electronic communications. (a) Any investigative or law enforcement officer who, by any means authorized by this part, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose the contents to another investigative or law enforcement officer to the extent that the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

(b) Any investigative or law enforcement officer who, by any means authorized by this part, has obtained knowledge of the contents of any wire, oral, or electronic communication or evidence derived therefrom may use the contents to the extent the use is appropriate to the proper performance of the officer's official duties.

(c) Any person who has received, by any means authorized by this part, any information concerning a wire, oral, or electronic communication, or evidence derived therefrom, intercepted in accordance with this part, may disclose the contents of that communication or any derivative evidence while giving testimony under oath or affirmation in any proceeding in any court or before the grand jury in this State.

(d) No otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, this part shall lose its privileged character.

(e) When an investigative or law enforcement officer, while engaged in intercepting wire, oral, or electronic communications in the manner authorized herein, intercepts wire, oral, or electronic communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof and evidence derived therefrom may be disclosed or used as provided in subsections (a) and (b). The contents and any evidence derived therefrom may be used under subsection (c) when authorized or approved by a designated judge, if the judge finds on subsequent application that the contents were otherwise intercepted in accordance with this part. The application shall be made as soon as practicable.

803-J Procedure for interception of wire, oral, or electronic communications; application; order; remedies. (a) Each application for an order authorizing or approving the interception of a wire, oral, or electronic communication under this part shall be made in writing upon oath or affirmation to a designated judge and shall be accompanied by a written memorandum recommending approval or disapproval by the surveillance review unit of the department of attorney general, as provided in section 28- . The application shall state the applicant's authority to make the application. Each application shall include the following information:

(1) The identity of the investigative or law enforcement officer making the application and the officer authorizing the application;

(2) A full and complete statement of the facts and circumstances relied upon by the applicant, to justify the applicant's belief that an order should be issued, including:

(A) Details as to the particular offense that has been, is being, or is about to be committed;

(B) Except as provided in subsection (k), a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted;

(C) A particular description of the type of communications sought to be intercepted; and

(D) The identity of the person, if known, committing the offense and whose communications are to be intercepted;

(3) A full and complete statement as to whether other investigative procedures have been tried and failed or why they reasonably appear to be either unlikely to succeed if tried or too dangerous;

(4) A statement of the period of time for which the interception is required to be maintained; or if the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;

(5) A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire, oral, or electronic communications involving any of the same persons, facilities, or places specified in the application, and the action taken by the judge on each application; and

(6) When the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception or a reasonable explanation of the failure to obtain any results.

(b) The designated judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.

(c) Upon such application, the designated judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, oral, or electronic communications, if the designated judge determines on the basis of the facts submitted by the applicant that:

(1) There is probable cause for belief that a person is committing, has committed, or is about to commit a particular offense enumerated in section 803-H;

(2) There is probable cause for belief that particular communications concerning that offense will be obtained through the interception;

(3) Normal investigative procedures have been tried and have failed or reasonably appear to be either unlikely to succeed if tried or to be too dangerous; and

(4) Except as provided in subsection (k), there is probable cause for belief that the facilities from which or the place where the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense or are leased to, listed in the name of, or commonly used by such person.

(d) Each order authorizing or approving the interception of any wire, oral, or electronic communication under this part shall specify:

(1) The identify of the person, if known, whose communications are to be intercepted;

(2) The nature and location of the communications facilities as to which or the place where authority to intercept is granted;

(3) A particular description of the type of communication sought to be intercepted and a statement of the particular offense to which it relates;

(4) The identity of the agency authorized to intercept the communications and of the person authorizing the application; and

(5) The period of time during which the interception is authorized, including a statement as to whether the interception is to terminate automatically upon the described communication first being obtained.

Upon request of the applicant, an order authorizing the interception of a wire, oral, or electronic communication under this subpart shall direct that a provider of wire or electronic communication service, landlord, custodian, or other person shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that the service provider, landlord, custodian, or person is according the person whose communications are to be intercepted. Any provider of wire or electronic communication service, landlord, custodian, or other person furnishing the facilities or technical assistance shall be compensated therefor by the applicant for reasonable expenses incurred in providing the facilities or assistance.

(e) No order entered under this section shall authorize or approve the interception of any wire, oral, or electronic communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days. The thirty-day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or ten days after the order is entered. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (a) and the court making the findings required by subsection (c). The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this part, and shall terminate upon attainment of the authorized objective, or in any event in thirty days. If the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after the interception.

An interception under this part may be conducted, in whole or in part, by investigative or law enforcement officers or by an individual operating under a contract with the State or a county, acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception.

(f) Whenever an order authorizing interception is entered pursuant to this part, the order may require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. The reports shall be made at such intervals as the judge may require.

(g) Notwithstanding any other provision of this part to the contrary, any investigative or law enforcement officer, specially designated by the attorney general or the prosecuting attorney for a county of this State, who reasonably determines that:

(1) An emergency situation exists that involves:

(A) Immediate danger of death or serious physical injury to any person; or

(B) Conspiratorial activities characteristic of organized crime;

and that requires a wire, oral, or electronic communication to be intercepted before an order authorizing the interception can, with due diligence, be obtained; and

(2) There are grounds upon which an order could be entered under this part to authorize the interception,

may intercept the wire, oral, or electronic communication if an application for an order approving the interception is made in accordance with this section within forty-eight hours after the interception has occurred or begins to occur. In the absence of an order, the interception shall terminate immediately once the communication sought is obtained or when the application for the order is denied, whichever is earlier. If the application for approval is denied, or in any other case in which the interception is terminated without an order having been issued, the contents of any wire, oral, or electronic communication intercepted shall be treated as having been obtained in violation of this part, and an inventory shall be served as provided for in subsection (h)(4) on the person named in the application.

(h) Contents of communication; applications; violations; reasonable time.

(1) The contents of any wire, oral, or electronic communication intercepted by any means authorized by this part shall be recorded on tape or wire or other comparable device, if possible. The recording of the contents of any wire, oral, or electronic communication under this subsection shall be done in such way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, the recording shall be made available to the judge issuing the order and sealed under the judge's directions. Custody of the recording shall be wherever the judge orders. Recordings shall not be destroyed, except upon an order of the issuing or denying judge, and, in any event, shall be kept for ten years. Duplicate recordings may be made for use or disclosure pursuant to section 803-I(a) and (b) for investigations. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom under section 803-I(c).

(2) Applications made and orders granted under this part shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. Applications and orders shall be disclosed only upon a showing of good cause before a designated judge, shall not be destroyed, except on order of the issuing or denying judge, and, in any event, shall be kept for ten years.

(3) Any violation of this subsection may be punished as contempt of the issuing or denying judge.

(4) Within a reasonable time but not later than ninety days after either the filing of an application for an order of approval under subsection (g) that is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application and any other parties to intercepted communications as the judge may determine, in the judge's discretion, is in the interest of justice, an inventory that shall include notice of:

(A) The fact of the entry of the order or the application;

(B) The date of the entry and the period of authorized, approved, or disapproved interception, or the denial of the application; and

(C) The fact that during the period wire, oral, or electronic communications were or were not intercepted.

The judge, upon the filing of a motion and in the judge's discretion, may make available to the person or the person's counsel for inspection those portions of the intercepted communications, applications, and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a designated judge, the judge may permit the serving of the inventory required by this subsection to be postponed.

(i) The contents of any wire, oral, or electronic communication intercepted pursuant to this part or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a court of this State, unless each party, not less than ten days before the trial, hearing, or proceeding, has been furnished with a copy of the court order and accompanying application under which the interception was authorized or approved. This ten-day period may be waived by the judge upon a finding that it was not possible to furnish the party with the above information ten days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving the information.

(j) Aggrieved persons; right to appeal; remedies and sanctions.

(1) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the State or a county may move to suppress the contents of any wire or oral communication intercepted pursuant to this part, or evidence derived therefrom, on the grounds that:

(A) The communication was unlawfully intercepted;

(B) The order of authorization or approval under which it was intercepted is insufficient on its face; or

(C) The interception was not made in conformity with the order of authority or approval.

The motion shall be made before the trial, hearing, or proceeding, unless there was no opportunity to make the motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this part. The judge, upon the filing of a motion by the aggrieved person, may make available to the aggrieved person or the aggrieved person's counsel for inspection those portions of the intercepted communication, or evidence derived therefrom, as the judge determines to be in the interests of justice.

(2) In addition to any other right to appeal, the State shall have the right to appeal from an order granting a motion to suppress made under paragraph (1) or the denial of an application for an order of approval, if the attorney general or the prosecuting attorney of a county of the State or their designated representatives certify to the judge or other official granting the motion or denying the application that the appeal is not taken for purposes of delay. The appeal shall be taken within thirty days after the date the order was entered and shall be diligently prosecuted. If the appeal is from an order denying an application for an order of authorization or approval, the appeal shall be in camera and in preference to all other pending appeals in accordance with rules adopted by the supreme court.

(3) The remedies and sanctions described in this part with respect to the interception of electronic communications are the only judicial remedies and sanctions for nonconstitutional violations of this part involving such communications.

(k) The requirements of subsections (a)(2)(B) and (c)(4) relating to the specification of the facilities from which, or the place where, the communication is to be intercepted do not apply if:

(1) In the case of an application with respect to the interception of an oral communication:

(A) The application is by an investigative or law enforcement officer and is approved by the attorney general or a prosecuting attorney for a county of the State;

(B) The application contains a full and complete statement as to why the specification is not practical and identifies the person committing the offense and whose communications are to be intercepted; and

(C) The judge finds that the specification is not practical; or

(2) In the case of an application with respect to a wire or electronic communication:

(A) The application is by an investigative or law enforcement officer and is approved by the attorney general or a prosecuting attorney for a county of the State;

(B) The application identifies the person believed to be committing the offense and whose communications are to be intercepted and the applicant makes a showing of a purpose, on the part of that person, to thwart interception by changing facilities; and

(C) The judge finds that the purpose has been adequately shown.

(l) An interception of a communication under an order with respect to which the requirements of subsections (a)(2)(B) and (c)(4) do not apply by reason of subsection (k) shall not begin until the facilities from which, or the place where, the communication is to be intercepted is ascertained by the person implementing the interception order. A provider of wire or electronic communications service that has received an order as provided for in subsection (k)(2) may move the court to modify or quash the order on the ground that its assistance with respect to the interception cannot be performed in a timely or reasonable fashion. The court, upon notice to the State, shall decide the motion expeditiously.

803-K Reports concerning intercepted wire, oral, or electronic communications. (a) Within thirty days after either the expiration of an order or each extension thereof entered under section 803-J, or the denial of an order approving an interception, the issuing or denying judge shall report to the administrative director of the courts:

(1) The fact that an order or extension was applied for;

(2) The kind of order or extension applied for, including whether the order was an order with respect to which the requirements of section 803-J(a)(2)(B) and 803-J(c)(4) did not apply by reason of section 803-J(k);

(3) The fact that the order or extension was granted as applied for, was modified, or was denied;

(4) The period of interceptions authorized by the order and the number and duration of any extensions of the order;

(5) The offense specified in the order or application, or extension of an order;

(6) The identity of the applying investigative or law enforcement officer and agency making the application and the person authorizing the application; and

(7) The nature of the facilities from which or the place where communications were to be intercepted.

(b) By January 1 of each year, the attorney general and the county prosecutors shall report to the administrative director of the courts:

(1) The information required by subsection (a) with respect to each application for an order or extension made during the preceding calendar year;

(2) A general description of the interceptions made under the order or extension, including:

(A) The approximate nature and frequency of incriminating communications intercepted;

(B) The approximate nature and frequency of other communications intercepted;

(C) The approximate number of persons whose communications were intercepted; and

(D) The approximate nature, amount, and cost of the personnel and other resources used in the interceptions;

(3) The number of arrests resulting from interceptions made under an order or extension, and the offenses for which the arrests were made;

(4) The number of trials resulting from the interceptions;

(5) The number of motions to suppress made with respect to the interceptions and the number granted or denied;

(6) The number of convictions resulting from the interceptions and the offenses for which the convictions were obtained and a general assessment of the importance of the interceptions;

(7) The information required by paragraphs (2) through (6) with respect to orders or extensions obtained in a preceding calendar year; and

(8) Other information required by the office of the administrative director of the courts.

(c) In March of each year, the administrative director of the courts shall transmit to the legislature a full and complete report concerning the number of applications for orders authorizing or approving the interception of wire, oral, or electronic communications pursuant to this part and the number of orders and extensions granted or denied pursuant to this part during the preceding calendar year. The report shall include a summary and analysis of the data required to be filed with the administrative director of the courts by subsections (a) and (b). The administrative director of the courts may issue binding guidelines dealing with the content and form of the reports required to be filed by subsections (a) and (b).

803-L Recovery of civil damages authorized. (a) Except as provided in section 803-B(b)(1)(B), any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this subpart, may recover in a civil action such relief as may be appropriate from the person or entity that engaged in the violation.

(b) In an action under this section, appropriate relief includes:

(1) Preliminary and other equitable or declaratory relief as may be appropriate;

(2) Damages under subsection (c) and punitive damages in appropriate cases; and

(3) A reasonable attorney's fee and other litigation costs reasonably incurred.

(c) (1) In an action under this section, if the conduct in violation of this subpart is the private viewing of a private satellite video communication that is not scrambled or encrypted or if the communication is a radio communication that is transmitted on frequencies allocated under subpart D of part 74 of the rules of the Federal Communications Commission that is not scrambled or encrypted and the conduct is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, then the court shall assess the damages as follows:

(A) If the person who engaged in that conduct has not previously been enjoined under section 803-D and has not been found liable in a prior civil action under this section, the court shall assess the greater of the sum of actual damages suffered by the plaintiff or statutory damages of not less than $50 and not more than $500; or

(B) If, on one prior occasion, the person who engaged in that conduct has been enjoined under section 803-B(e) or has been found liable in a civil action under this section, the court shall assess the greater of the sum of actual damages suffered by the plaintiff or statutory damages of not less than $100 and not more than $1,000.

(2) In any other action under this section, the court may assess as damages whichever is the greater of:

(A) The sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or

(B) Statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.

(d) A good faith reliance on:

(1) A court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization;

(2) A request of an investigative or law enforcement officer under section 803-J(g); or

(3) A good faith determination that section 803-B(c) permitted the conduct complained of; is a complete defense against any civil or criminal action brought under this part or any other law.

(e) A civil action under this section shall not be commenced later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation.

803-M Injunction against illegal interception. Whenever it appears that any person is engaged or is about to engage in any act that constitutes or will constitute a felony violation of this part, the attorney general may initiate a civil action in a circuit court of this State to enjoin the violation. The court shall proceed as soon as practicable to the hearing and determination of the action, and at any time before final determination, may enter a restraining order or prohibition or take any other action as is warranted to prevent a continuing and substantial injury to the State or to any person or class of persons for whose protection the action is brought. A proceeding under this section is governed by the Hawaii rules of civil procedure; except that, if an indictment, information, or criminal complaint has been returned against the respondent, discovery is governed by the Hawaii rules of penal procedure.

C. STORED COMMUNICATIONS

803-N Unlawful access to stored communications. (a) A person commits the offense of unlawful access to stored communications if, without authorization as provided in subsection (d), the person:

(1) Intentionally accesses without authorization a facility through which an electronic communication service is provided; or

(2) Intentionally exceeds an authorization to access that facility; and

thereby obtains, alters, or prevents authorized access to a wire or electronic communication, while it is in electronic storage in the system.

(b) Unlawful access to stored communications is a misdemeanor, except as provided by subsection (c).

(c) Unlawful access to stored communications is a class C felony if:

(1) Committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain; and

(2) The person committing the unlawful access to stored communications has been previously convicted of unlawful access to stored communications.

(d) Subsections (a), (b), and (c) do not apply with respect to conduct authorized:

(1) By the person or entity providing a wire or electronic communications service;

(2) By a user of that service with respect to a communication of or intended for that user; or

(3) In sections 803-J, 803-P, or 803-Q.

803-O Disclosure of contents. (a) Except as provided in subsection (b):

(1) A person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and

(2) A person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication that is carried or maintained on that service:

(A) On behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of the service; and

(B) Solely for the purpose of providing storage or computer processing services to the subscriber or customer, if the provider is not authorized to access the contents of those communications for purposes of providing any services other than storage or computer processing.

(b) A person or entity may divulge the contents of a communication:

(1) To an addressee or intended recipient of the communication or an agent of the addressee or intended recipient;

(2) As otherwise authorized in section 803-B(b)(1), 803-I, or 803-P;

(3) With the lawful consent of the originator or an addressee of intended recipient of the communication, or the subscriber in the case of remote computer service;

(4) To a person employed or authorized or whose facilities are used to forward the communication to its destination;

(5) As may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service; or

(6) To a law enforcement agency if the contents:

(A) Were inadvertently obtained by the service provider; and

(B) Appear to pertain to the commission of a crime.

803-P Requirements for governmental access. (a) A governmental entity may require the disclosure by a provider of electronic communication service of the contents of an electronic communication that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of an electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b).

(b) Remote computing service.

(1) A governmental entity may require a provider of remote computing service to disclose the contents of any electronic communication to which this paragraph is made applicable by paragraph (2):

(A) Without required notice to the subscriber or customer, if the governmental entity obtains a warrant; or

(B) With prior notice from the governmental entity to the subscriber or customer, if the governmental entity:

(i) Uses an administrative subpoena authorized by statute or an attorney general subpoena or a grand jury subpoena or a trial subpoena; or

(ii) Obtains a court order for the disclosure under subsection (d);

except that delayed notice may be given pursuant to section 803-R.

(2) Paragraph (1) applies with respect to any electronic communication that is held or maintained on that service:

(A) On behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of the remote computing service; and

(B) Solely for the purpose of providing storage or computer processing services to the subscriber or customer, if the provider is not authorized to access the contents of those communications for purposes of providing any services other than storage or computer processing.

(c) Disclosure of records.

(1) Disclosure regarding non-government and government entities.

(A) Except as provided in subsection(b)(2)(B), a provider of electronic communication service or remote computing service may disclose a record or other information pertaining to a subscriber to or customer of the service (not including the contents of communications covered by subsection (a) or (b)) to any person other than a governmental entity.

(B) A provider of electronic communication service or remote computing service shall disclose a record or other information pertaining to a subscriber to or customer of the service (not including the contents of communications covered by subsection (a) or (b)) to a governmental entity only when the governmental entity:

(i) Obtains a warrant;

(ii) Obtains a court order for the disclosure under subsection (d); or

(iii) Has the consent of the subscriber or customer to the disclosure.

(C) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of the service and the types of services the subscriber or customer utilized, when the governmental entity uses an administrative subpoena authorized by statute or an attorney general subpoena or a grand jury subpoena or a trial subpoena or any means available under subparagraph (B).

(2) A governmental entity receiving records or information under this subsection is not required to provide notice to a subscriber or customer.

(d) A court order for disclosure under subsection (b) or (c) may be issued by a district court judge or a designated judge and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify the order if the information or records requested are unusually voluminous in nature or compliance with the order otherwise would cause an undue burden on the provider.

(e) No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, or certification under this subpart.

(f) Preservation of records.

(1) A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.

(2) Records referred to in paragraph (1) shall be retained for a period of ninety days, which shall be extended for an additional ninety-day period upon a renewed request by the governmental entity.

803-Q Backup preservation. (a) A governmental entity acting under section 803-P(b) may include in its subpoena or court order a requirement that the service provider to whom the request is directed create a backup copy of the contents of the electronic communications sought in order to preserve those communications. Without notifying the subscriber or customer of the subpoena or court order, the service provider shall create the backup copy as soon as practicable, consistent with its regular business practices, and shall confirm to the governmental entity that the backup copy has been made. The backup copy shall be created within two business days after receipt by the service provider of the subpoena or court order.

(b) Notice to the subscriber or customer shall be made by the governmental entity within three days after receipt of the confirmation, unless notice is delayed pursuant to section 803-R(a).

(c) The service provider shall not destroy the backup copy until the later of:

(1) The delivery of the information; or

(2) The resolution of any proceedings, including appeals of any proceeding, concerning the State's subpoena or court order.

(d) The service provider shall release the backup copy to the requesting governmental entity no sooner than fourteen days after the governmental entity's notice to the subscriber or customer, if the service provider:

(1) Has not received notice from the subscriber or customer that the subscriber or customer has challenged the governmental entity's request; or

(2) Has not initiated proceedings to challenge the request of the governmental entity.

(e) A governmental entity may seek to require the creation of a backup copy under subsection (a)(1) if, in its sole discretion, the entity determines that there is reason to believe that notification under section 803-P of the existence of the subpoena or court order may result in destruction of or tampering with evidence. This determination is not subject to challenge by the subscriber, customer, or service provider.

(f) Motion to quash subpoena or vacate court orders.

(1) Within fourteen days after notice by the governmental entity to the subscriber or customer under subsection (b), the subscriber or customer may file a motion to quash the subpoena or vacate the court order, with copies served upon the governmental entity and with written notice of the challenge to the service provider. A motion to vacate a court order shall be filed with the judge who issued the order. A motion to quash a subpoena shall be filed in the appropriate court. The motion or application shall contain an affidavit or sworn statement:

(A) Stating that the applicant is a customer or subscriber to the service from which the contents of electronic communications maintained for applicant have been sought; and

(B) Stating the applicant's reasons for believing that the records sought are not relevant to a legitimate law enforcement inquiry or that there has not been substantial compliance with this subpart in some other respect.

(2) Service shall be made under this section upon a governmental entity by delivering or mailing by registered or certified mail a copy of the papers to the person, office, or department specified in the notice which the customer has received pursuant to this subpart. For the purposes of this section, the term "delivery" has the meaning given that term in the Hawaii rules of civil procedure.

(3) If the court finds that the customer has complied with paragraphs (1) and (2), the court shall order the governmental entity to file a sworn response, which may be filed in camera if the governmental entity includes in its response the reasons that make in camera review appropriate. If the court is unable to determine the motion or application on the basis of the parties' initial allegations and response, the court may conduct additional proceedings as it deems appropriate. All proceedings shall be completed and the motion or application decided as soon as practicable after the filing of the governmental entity's response.

(4) If the court finds that the applicant is not the subscriber or customer for whom the communications sought by the governmental entity are maintained, or that there is a reason to believe that the law enforcement inquiry is legitimate and that the communications sought are relevant to that inquiry, it shall deny the motion or application and order the process enforced. If the court finds that the applicant is the subscriber or customer for whom the communications sought by the governmental entity are maintained and that there is not a reason to believe that the communications sought are relevant to a legitimate law enforcement inquiry or that there has not been substantial compliance with this subpart, it shall order the process quashed.

(5) A court order denying a motion or application under this section shall not be deemed a final order, and no interlocutory appeal may be taken therefrom by the customer.

803-R Delayed notice.

(a) Governmental entity actions.

(1) A governmental entity action under section 803-P(b) may:

(A) When a court order is sought, include in the application a request, which the court shall grant, for an order delaying the notification required under section 803-P(b) for a period not to exceed ninety days, if the court determines that there is reason to believe that notification of the existence of the court order may have an adverse result described in paragraph (2); or

(B) When an administrative subpoena authorized by statute or a grand jury subpoena is obtained, delay the notification required under section 803-P(b) for a period not to exceed ninety days upon the execution of a written certification of a supervisory official that there is reason to believe that notification of the existence of the subpoena may have an adverse result described in paragraph (2).

(2) An adverse result for purposes of paragraph (1) is:

(A) Endangering the life or physical safety of an individual;

(B) Flight from prosecution;

(C) Destruction of or tampering with evidence;

(D) Intimidation of potential witnesses; or

(E) Otherwise seriously jeopardizing an investigation or unduly delaying a trial.

(3) The governmental entity shall maintain a true copy of certification under paragraph (1)(B).

(4) Extensions of the delay of notification provided in section 803-P of up to ninety days each may be granted by the court upon application, or by certification by a governmental entity, but only in accordance with subsection (b).

(5) Upon expiration of the period of delay of notification under paragraph (1) or (4), the governmental entity shall serve upon, or deliver by registered or first-class mail to, the customer or subscriber a copy of the process or request together with notice that:

(A) States with reasonable specificity the nature of the law enforcement inquiry; and

(B) Informs the customer or subscriber:

(i) That information maintained for the customer or subscriber by the service provider named in the process or request was supplied to or requested by that governmental authority and the date on which the supplying or request took place;

(ii) That notification of the customer or subscriber was delayed;

(iii) What governmental entity or court made the certification or determination pursuant to which that delay was made; and

(iv) Which provision of this part allowed the delay.

(6) As used in this subsection, the term "supervisory official" means the attorney general, the first deputy attorney general, the prosecuting attorney or the first deputy prosecuting attorney of the applicable county, or the chief of police or the deputy chief of police of the applicable county.

(b) A governmental entity acting under section 803-P, when it is not required to notify the subscriber or customer under section 803-P(b)(1)(A), or to the extent that it may delay notice pursuant to subsection (a), may apply to a district court judge or a designated judge for an order commanding a provider of electronic communications service or remote computing service to whom a warrant, subpoena, or court order is directed, for such period as the court deems appropriate, not to notify any other person of the existence of the warrant, subpoena, or court order. The court shall enter the order if it determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result in:

(1) Endangering the life or physical safety of an individual;

(2) Flight from prosecution;

(3) Destruction of or tampering with evidence;

(4) Intimidation of potential witnesses; or

(5) Otherwise seriously jeopardizing an investigation or unduly delaying a trial.

803-S Cost reimbursement. (a) Except as otherwise provided in subsection (c), a governmental entity obtaining the contents of communications, records, or other information under section 803-O, 803-P, or 803-Q shall pay to the person or entity assembling or providing the information a fee for reimbursement or costs that are reasonably necessary and that have been directly incurred in searching for, assembling, reproducing, or otherwise providing the information. The reimbursable costs shall include any costs due to necessary disruption of normal operations of any electronic communication service or remote computing service in which the information may be stored.

(b) The amount of the fee provided by subsection (a) shall be as mutually agreed by the governmental entity and the person or entity providing the information or, in the absence of agreement, shall be as determined by the court that issued the order for production of the information or the court before which a criminal prosecution relating to the information would be brought, if no court order was issued for production of the information.

(c) The requirement of subsection (a) does not apply with respect to records or other information maintained by a communications common carrier that relate to telephone toll records and telephone listings obtained under section 803-P. However, the court may order a payment as described in subsection (a), if the court determines the information required is unusually voluminous in nature or otherwise caused an undue burden on the provider.

803-T Civil action. (a) Except as provided in section 803-P(e), any provider of electronic communication service, subscriber, or other person aggrieved by any violation relating to this subpart in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind, may recover such relief as may be appropriate, in a civil action, from the person or entity that engaged in that violation.

(b) In a civil action under this section, appropriate relief includes:

(1) Such preliminary and other equitable or declaratory relief as may be appropriate;

(2) Damages under subsection (c); and

(3) A reasonable attorney's fee and other litigation costs reasonably incurred.

(c) The court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $1,000. If the violation is knowing or intentional, the court may assess punitive damages. In the case of a successful action to enforce liability under this section, the court may assess the costs of the action, together with reasonable attorney's fees determined by the court.

(d) If a court determines that any state or county agency or department has violated this subpart and the court finds that the circumstances surrounding the violation raise the question whether an officer or employee of the state or county agency or department acted knowingly or intentionally with respect to the violation, the agency or department concerned promptly shall initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee.

(e) A good faith reliance on:

(1) A court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization;

(2) A request of an investigative or law enforcement officer under section 803-J(g); or

(3) A good faith determination that section 803-B(c) permitted the conduct complained of; is a complete defense to any civil or criminal action brought pursuant to this subpart or any other law.

(f) A civil action under this section may not be commenced later than two years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation.

803-U Exclusivity of remedies. The remedies and sanctions described in this subpart are the only judicial remedies and sanctions for nonconstitutional violation of this subpart.

D. MOBILE TRACKING DEVICES

803-V Application for authorization to install and use a mobile tracking device. (a) A designated judge is empowered to issue a warrant or other order for the installation of a mobile tracking device. The order may authorize the use of that device within the jurisdiction of the court and outside that jurisdiction, if the device is installed in that jurisdiction.

(b) Upon application to the designated judge for a court order, the designated judge should be satisfied that there are sufficient facts and circumstances contained within the application to establish probable cause to believe that the use of a mobile tracking device will discover the fruits, instrumentalities, or evidence of a crime or is relevant to an ongoing criminal investigation.

(c) If the designated judge is so satisfied, the judge shall issue an order specifying:

(1) The identity, if known, of the person who is the subject of the investigation;

(2) The number of mobile tracking devices to be used and the geographical locations where the devices are to be installed; and

(3) The identity, if known, of any person who may have a privacy interest in the point of installation of the mobile tracking device.

(d) An order authorizing installation and use of a mobile tracking device shall not exceed sixty days. Extensions of the orders may be granted only upon reapplication establishing probable cause to justify the continued use of a mobile tracking device. The period of the extension shall not exceed sixty days.

(e) The order shall direct that the order be sealed until otherwise directed by the court.

803-W Prohibited use of a pen register or a trap and trace device. (a) A person not excluded by subsection (b) commits the offense of prohibited use of a pen register or a trap and trace device if the person installs or uses a pen register or a trap and trace device without first obtaining a court order under section 803-Y.

(b) The prohibition of subsection (a) does not apply with respect to the use of a pen register or a trap and trace device by a provider of electronic or wire communication service:

(1) Relating to the operation, maintenance, and testing of a wire or electronic communication service or to the protection of the rights or property of the provider or to the protection of users of that service from abuse of service or unlawful use of service;

(2) To record the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service toward the completion of the wire communication, or a user of that service from fraudulent, unlawful, or abusive use of service; or

(3) Where the consent of the user of that service has been obtained.

(c) A government agency authorized to install and use a pen register under this subpart shall use technology reasonably available to it that restricts the recording or decoding of electronic or other impulses to the dialing and signaling information utilized in call processing.

(d) Prohibited use of a pen register or a trap and trace device is a misdemeanor.

803-X Application for an order for a pen register or a trap and trace device. (a) The attorney general or the prosecuting attorney for each county, or a subordinate designated to act in either's absence or incapacity, or an investigative or law enforcement officer may make application for an order or an extension of an order under section 803-Y authorizing or approving the installation and use of a pen register or a trap and trace device under this subpart, in writing under oath or equivalent affirmation, to a designated judge.

(b) An application under subsection (a) shall include:

(1) The identity of the official or the investigative or law enforcement officer making the application and the identity of the law enforcement agency conducting the investigation; and

(2) A certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.

803-Y Issuance of an order for a pen register or a trap and trace device. (a) Upon an application made under section 803-X, the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device within the jurisdiction of the court, if the court finds that the official or the investigative or law enforcement officer has certified to the court that the information likely to be obtained by the installation and use is relevant to an ongoing criminal investigation.

(b) An order issued under this section:

(1) Shall specify:

(A) The identity, if known, of the person to whom is leased or in whose name is listed the telephone line to which the pen register or trap and trace device is to be attached;

(B) The identity, if known, of the person who is the subject of the criminal investigation;

(C) The number and, if known, physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order; and

(D) A statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates; and

(2) Shall direct, upon the request of the applicant, the furnishing of information, facilities, and technical assistance necessary to accomplish the installation of the pen register or trap and trace device under section 803-Z.

(c) Period of authorization.

(1) An order issued under this subpart shall authorize the installation and use of a pen register or a trap and trace device for a period not to exceed sixty days.

(2) Extensions of an order may be granted, but only upon an application for an order under section 803-X and upon the judicial finding required by subsection (a). The period of extension shall be for a period not to exceed sixty days.

(d) An order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that:

(1) The order be sealed until otherwise ordered by the court; and

(2) The person owning or leasing the line to which the pen register or a trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person, unless or until otherwise ordered by the court.

803-Z Assistance in installation and use of a pen register or a trap and trace device. (a) Upon the request of the attorney general or the county prosecuting attorney, or a subordinate designated to act in either's absence or incapacity, or an investigative or law enforcement officer authorized to install and use a pen register under this subpart, a provider of wire or electronic communication service, landlord, custodian, or other person shall furnish the investigative or law enforcement officer forthwith all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place, if the assistance is directed by a court order as provided in section 803-Y(b)(2).

(b) Upon the request of the attorney general or the county prosecuting attorney, or a subordinate designated to act in either's absence or incapacity, or an officer of a law enforcement agency authorized to receive the results of a trap and trace device under this subpart, a provider of a wire or electronic communication service, landlord, custodian, or other person shall install the device forthwith on the appropriate line and shall furnish the investigative or law enforcement officer all additional information, facilities, and technical assistance including installation and operation of the device unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place, if the installation and assistance is directed by a court order as provided in section 803-Y(b)(2). Unless otherwise ordered by the court, the results of the trap and trace device shall be furnished, pursuant to section 803-Y(b) or 803-AA, to the officer of a law enforcement agency, designated in the court order, at reasonable intervals during regular business hours for the duration of the order.

(c) A provider of a wire or electronic communication service, landlord, custodian, or other person who furnishes facilities or technical assistance pursuant to this section shall be reasonably compensated for the reasonable expenses incurred in providing the facilities and assistance.

(d) No cause of action shall lie in any court against any provider of a wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order under this part or request pursuant to section 803-AA.

(e) A good faith reliance on a court order under this part, a request pursuant to section 803-AA, a legislative authorization, or a statutory authorization is a complete defense against any civil or criminal action brought under this part or any other law.

803-AA Emergency pen register and trap and trace device installation. (a) Notwithstanding any other provision of this part to the contrary, any investigative or law enforcement officer specially designated by the attorney general of this State or the prosecuting attorney for a county of the State, who reasonably determines that:

(1) An emergency situation exists that involves:

(A) Immediate danger of death or serious bodily injury to any person; or

(B) Conspiratorial activities characteristic of organized crime

that requires the installation and use of pen register or a trap and trace device before an order authorizing the installation and use can, with due diligence, be obtained; and

(2) There are grounds upon which an order could be entered under this subpart to authorize the installation and use,

may order installed and use a pen register or trap and trace device if, within forty-eight hours after the installation has occurred or begins to occur, an order approving the installation or use is issued in accordance with section 803-Y.

(b) In the absence of an authorizing order, the use shall immediately terminate when the information sought is obtained, when the application for the order is denied, or when forty-eight hours have lapsed since the installation of the pen register or trap and trace device, whichever is earlier.

(c) The knowing installation or use by any investigative or law enforcement officer of a pen register or trap and trace device pursuant to subsection (a) without application for the authorizing order within forty-eight hours of the installation shall constitute a violation of this part.

(d) A provider of a wire or electronic service, landlord, custodian, or other person who furnished facilities or technical assistance pursuant to this section shall be compensated for the reasonable expenses incurred in providing the facilities and assistance.

803-BB Reports concerning pen registers and trap and trace devices. The attorney general shall annually report to the legislature on the number of pen register orders and orders for trap and trace devices applied for by law enforcement agencies of the State."

SECTION 3. Section 641-13, Hawaii Revised Statutes, is amended to read as follows:

"641-13 By State in criminal cases. An appeal may be taken by and on behalf of the State from the district or circuit courts to the supreme court, subject to chapter 602, in all criminal cases, in the following instances:

(1) From an order or judgment quashing, setting aside, or sustaining a motion to dismiss[,] any indictment or complaint or any count thereof;

(2) From an order or judgment[,] sustaining a special plea in bar[,] or dismissing the case where the defendant has not been put in jeopardy;

(3) From an order granting a new trial;

(4) From an order arresting judgment;

(5) From a ruling on a question of law adverse to the State, where the defendant was convicted and appeals from the judgment;

(6) From the sentence, on the ground that it is illegal;

(7) From a pretrial order granting a motion for the suppression of evidence, including a confession or admission, or the return of property in which case the intermediate appellate court or the supreme court, as the case may be, shall give priority to [such an] the appeal and the order shall be stayed pending the outcome of the appeal;

(8) From an order denying a request by the State for protective order for nondisclosure of witness for [their] reason of personal safety under Rule 16(e)(4) of the Hawaii Rules of Penal Procedure, in which case the intermediate appellate court or the supreme court, as the case may be, shall give priority to [such] the appeal and the order shall be stayed pending outcome of [such] the appeal;

(9) From a judgment of acquittal following a jury verdict of guilty[.]; and

(10) From a denial of an application for an order of approval or authorization of the interception of a wire, oral, or electronic communication pursuant to section 803-H."

SECTION 4. Part IV of chapter 803, Hawaii Revised Statutes, is repealed.

SECTION 5. In codifying the new part added to chapter 803, Hawaii Revised Statutes, by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in the new sections' designations in this Act.

SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval.

INTRODUCED BY:

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