THIRTIETH LEGISLATURE, 2020
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO VIOLATION OF PRIVACY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Section 853-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) This chapter shall not apply when:
(1) The offense charged involves the intentional, knowing, reckless, or negligent killing of another person;
(2) The offense charged is:
(A) A felony that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person; or
(B) A misdemeanor or petty misdemeanor that carries a mandatory minimum sentence and that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person;
(3) The offense charged involves a conspiracy or solicitation to intentionally, knowingly, or recklessly kill another person or to cause serious bodily injury to another person;
(4) The offense charged is a class A felony;
(5) The offense charged is nonprobationable;
(6) The defendant has been convicted of any offense defined as a felony by the Hawaii Penal Code or has been convicted for any conduct that if perpetrated in this State would be punishable as a felony;
(7) The defendant is found to be a law violator or delinquent child for the commission of any offense defined as a felony by the Hawaii Penal Code or for any conduct that if perpetrated in this State would constitute a felony;
(8) The defendant has a prior conviction for a felony committed in any state, federal, or foreign jurisdiction;
(9) A firearm was used in the commission of the offense charged;
(10) The defendant is charged with the distribution of a dangerous, harmful, or detrimental drug to a minor;
(11) The defendant has been charged with a felony offense and has been previously granted deferred acceptance of guilty plea or no contest plea for a prior offense, regardless of whether the period of deferral has already expired;
(12) The defendant has been charged with a misdemeanor offense and has been previously granted deferred acceptance of guilty plea or no contest plea for a prior felony, misdemeanor, or petty misdemeanor for which the period of deferral has not yet expired;
(13) The offense charged is:
(A) Escape in the first degree;
(B) Escape in the second degree;
(C) Promoting prison contraband in the first degree;
(D) Promoting prison contraband in the second degree;
(E) Bail jumping in the first degree;
(F) Bail jumping in the second degree;
(H) Bribery of or by a witness;
(I) Intimidating a witness;
(J) Bribery of or by a juror;
(K) Intimidating a juror;
(L) Jury tampering;
(M) Promoting prostitution;
(N) Abuse of family or household member;
(O) Sexual assault in the second degree;
(P) Sexual assault in the third degree;
(Q) A violation of an order issued pursuant to chapter 586;
(R) Promoting child abuse in the second degree;
(S) Promoting child abuse in the third degree;
(T) Electronic enticement of a child in the first degree;
(U) Electronic enticement of a child in the second degree;
(V) Prostitution pursuant to section 712-1200(1)(b);
(W) Street solicitation of prostitution under section 712-1207(1)(b);
(X) Solicitation of prostitution near schools or public parks under section 712-1209;
(Y) Habitual solicitation of prostitution
under section 712-1209.5; [
(Z) Solicitation of a minor for prostitution under section 712-1209.1;
(AA) Violation of privacy in the first degree; or
(BB) Violation of privacy in the second degree under section 711-1111(1)(d), (e), (f), (g), or (h);
(14) The defendant has been charged with:
(A) Knowingly or intentionally falsifying any report required under chapter 11, part XIII with the intent to circumvent the law or deceive the campaign spending commission; or
(B) Violating section 11-352 or 11-353; or
(15) The defendant holds a commercial driver's license and has been charged with violating a traffic control law, other than a parking law, in connection with the operation of any type of motor vehicle."
SECTION 2. The legislature finds that the unregulated and unfettered use of face surveillance poses unique and significant implications with respect to the civil rights and liberties of residents and visitors of Hawaii.
The legislature further finds that face surveillance technology has already been used in concerning ways in other states and countries. Face surveillance technology has reportedly been used to identify peaceful protestors during 2020 Black Lives Matter protests in various cities. Additionally, at least one foreign government is reported to have complete facial recognition profiles on all its citizens, which it uses to suppress free speech and invade the privacy of people within its borders without restraint. Hawaii's citizens should not be subject to such violations of privacy.
The legislature also finds that an overly broad application of government face surveillance in public spaces is the functional equivalent of requiring every person to carry and display a personal photo identification card at all times and carry a government global positioning system tracking device, which would constitute an unacceptable violation of privacy.
The legislature further believes, however, that there are circumstances in which the use of face surveillance does not infringe on an individual's privacy rights. One known advantage of face surveillance in Hawaii is that some county police departments have used face surveillance technology in a limited capacity, in coordination with the Hawaii criminal justice data center in the department of the attorney general. In the police departments, surveillance images of a crime are compared against mugshots that already exist in the Hawaii criminal justice data center's database. The face surveillance program is intended to identify possible suspects by generating investigative leads for detectives. While the face surveillance program is relatively new and has been used relatively little, the results of the program have been promising. The legislature believes that county police departments should be allowed to continue to use face surveillance for this limited purpose. However, until the technology matures and proper protections are put in place, the legislature finds that further uses of face recognition technology should be vetted and approved by the legislature.
The legislature further finds that the airports division of the department of transportation plans to use face surveillance technology to identify persons in airports who have fevers and may be infected with COVID-19 or other infectious diseases that pose a public health risk to the State. The legislature believes that monitoring passengers is a necessary step to ensure that Hawaii's economy can fully function while keeping the public safe. However, any monitoring must be properly balanced with the constitutional right to privacy, the destruction of obtained data, and prohibitions on sharing that data. The legislature believes that the airports division of the department of transportation should be allowed to continue to use face surveillance technology for this purpose.
The purpose of this part is to ensure that the legislature can properly vet future uses of the rapidly evolving technology and prevent unintended consequences from interfering with the privacy and freedom of Hawaii residents, as has occurred in other states and countries, by placing limits on the government's use of face surveillance, other than specified exceptions.
SECTION 3. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
§ -1 Definitions. As used in this chapter:
"Face surveillance" means an automated or semiautomated process that:
(1) Assists in identifying or verifying an individual or capturing information about an individual based on the physical characteristics of the individual's face; or
(2) Uses characteristics of an individual's face, head, or body to infer emotion, associations, activities, or the location of the individual.
"Face surveillance system" means any computer software or application that performs face surveillance.
"Government" means the State, or any of its political subdivisions, departments, agencies, and instrumentalities, corporate or otherwise.
"Government official" means any person or entity acting on behalf of the State, or any of its political subdivisions, including any officer, employee, agent, contractor, subcontractor, or vendor.
§ -2 Restriction on government use of face surveillance. (a) Except as provided in subsection (b), it shall be unlawful for the government or any government official to obtain, retain, share, access, or use:
(1) Any face surveillance system; or
(2) Any information obtained from a face surveillance system.
(b) A face surveillance system or information obtained from a face surveillance system shall only be obtained, retained, shared, accessed, or used:
(1) By law enforcement agency personnel trained in the use of a face surveillance system;
(A) To compare surveillance photographs or videos to arrest booking photographs from the Hawaii criminal justice data center; or
(B) In a photo lineup conducted pursuant to section 801K-2;
(2) By driver's license and civil identification card issuing agencies to satisfy the requirements of the federal REAL ID Act of 2005; or
(3) By the government or a government official in conjunction with thermal scanning technology as used at state airports upon a determination by the director of health that there is a potential for a serious outbreak of a communicable or dangerous disease or there is the likelihood of extensive injury or death; provided that information obtained from a face surveillance system shall be destroyed within sixty minutes after it is obtained.
(c) Information obtained from a face surveillance system shall not constitute probable cause for an arrest."
SECTION 4. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 7. This Act shall take effect upon its approval.
Honolulu Prosecuting Attorney Package; Face Surveillance; Violation of Privacy
Excludes violation of privacy in the first degree, and certain paragraphs of violation of privacy in the second degree, from qualifying for deferred acceptance of guilty plea or nolo contendere plea. Limits the government use of face surveillance systems, except in certain circumstances. (HD1 PROPOSED)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.