STAND. COM. REP. NO. 671-04

Honolulu, Hawaii

, 2004

RE: H.B. No. 2370

H.D. 1

 

 

 

Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-Second State Legislature

Regular Session of 2004

State of Hawaii

Sir:

Your Committee on Judiciary, to which was referred H.B. No. 2370 entitled:

"A BILL FOR AN ACT RELATING TO ELECTRONIC SURVEILLANCE,"

begs leave to report as follows:

The purpose of this measure is to enhance Hawaii law enforcement agencies' criminal investigation capabilities by making Hawaii's electronic surveillance laws consistent with federal electronic surveillance laws. Specifically, this bill:

(1) Establishes a surveillance review unit within the Department of the Attorney General (AG);

(2) Prohibits:

(a) Interception and disclosure with certain exceptions;

(b) Manufacture, distribution, possession, or advertising of intercepting devices, with certain exceptions; and

(c) Use of contents or evidence derived from wire, oral, or electronic communication;

 

(3) Allows designated authorities to authorize or approve the interception of wire, electronic, or oral communications, and authorizes their disclosure and use for investigative purposes;

(4) Regulates the procedure for interception;

(5) Provides for recovery of civil damages in cases where communication has been illegally intercepted, disclosed, or used;

(6) Provides for injunction against illegal interception;

(7) Allows a governmental entity to require 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; and

(8) Establishes regulations for use of a mobile tracking device, pen register or trap and trace device.

The AG, Department of Public Safety, Department of the Prosecuting Attorney of the City and County of Honolulu, the Hawaii County Police Department, Department of the Prosecuting Attorney of the County of Maui, Office of the Prosecuting Attorney of the County of Hawaii, Police Department of the City and County of Honolulu, Hawaii Tourism Authority, and High Intensity Drug Trafficking Area task force submitted testimony in support of this measure. The Office of the Public Defender opposed this measure.

Your Committee notes that no appropriation has been provided to create a Surveillance Review Unit (Surveillance Unit) within the Department of the AG. Your Committee also notes that deletion of the section establishing the Surveillance Unit would not impede implementation of this bill's substantive provisions, according to the AG's testimony.

Your Committee finds that while electronic eavesdropping may be one of law enforcement's most effective investigative tools, it also has great potential to intrude on innocent, private, and personal communications among law-abiding citizens. Your Committee also finds that orders issued in federal courts that apply federal law are not subject to the protection of individual privacy that our State Constitution provides. Therefore, several provisions in the existing statute relating to electronic eavesdropping provide greater privacy protection than this measure, which is based on federal law.

Accordingly, your Committee has amended this bill by:

(1) Deleting language that establishes a Surveillance Review Unit within the Department of the AG;

(2) Deleting provisions that permit an investigative or law enforcement officer, in an emergency situation, to:

(a) Intercept wire, oral, or electronic communication; and

(b) Install or use a pen register or trap and trace device

and seek retroactive court approval within forty-eight hours;

(3) Increasing from ten days to thirty days, unless waived, the time period before which each party must be furnished with a copy of the court order and accompanying application that authorizes or approves an interception if any intercepted wire, oral, or electronic communication or evidence derived therefrom is to be received in evidence or disclosed in a trial, hearing, or other court proceeding;

(4) Including all of the information presently required in an application for an order that authorizes or approves the interception of communication (section 803-46(a)(1) through (a)(7), Hawaii Revised Statutes) in the list of information for this bill;

(5) Including existing provisions for minimizing the invasion of privacy that results from interception of communication (section 803-46(e)(1) and (e)(2), Hawaii Revised Statutes); and

(6) Making technical, nonsubstantive amendments for clarity, consistency, and style.

 

As affirmed by the record of votes of the members of your Committee on Judiciary that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 2370, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 2370, H.D. 1, and be placed on the calendar for Third Reading.

Respectfully submitted on behalf of the members of the Committee on Judiciary,

 

____________________________

ERIC G. HAMAKAWA, Chair