REPORT TITLE:
Wiretap


DESCRIPTION:
Requires public utilities commission to adopt rules regarding
notice of interception laws to consumers.  Requires interceptions
of wire, electronic, and oral communications by one party to the
communication to have the consent of all parties to the
communication; requires audible beep during interceptions of wire
and oral communications.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           471
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO ELECTRONIC EAVESDROPPING.



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

 1      SECTION 1.  Section 269-6, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "�269-6 General powers and duties.  The public utilities
 
 4 commission shall have the general supervision hereinafter set
 
 5 forth over all public utilities, and shall perform the duties and
 
 6 exercise the powers imposed or conferred upon it by this chapter.
 
 7 Included among the general powers of the commission is the
 
 8 authority to adopt rules pursuant to chapter 91 necessary for the
 
 9 purposes of this chapter.  Among the specific powers of the
 
10 commission is the authority to adopt rules to require
 
11 telecommunications providers to give adequate notice of wire and
 
12 oral interception laws to its consumers.
 
13      The chairperson of the commission may appoint a hearings
 
14 officer, who shall not be subject to chapters 76 and 77, to hear
 
15 and recommend decisions in any proceeding before it other than a
 
16 proceeding involving the rates or any other matters covered in
 
17 the tariffs filed by the public utilities.  The hearings officer
 
18 shall have the power to take testimony, make findings of fact and
 
19 conclusions of law, and recommend a decision; provided that the
 

 
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 1 findings of fact, the conclusions of law, and the recommended
 
 2 decision shall be reviewed and may be approved by the commission
 
 3 after notice to the parties and an opportunity to be heard.  The
 
 4 hearings officer shall have all of the powers conferred upon the
 
 5 public utilities commission under section 269-10."
 
 6      SECTION 2.  Section 803-42, Hawaii Revised Statutes, is
 
 7 amended by amending subsection (b) to read as follows:
 
 8      "(b) (1)  It shall not be unlawful under this part for an
 
 9           operator of a switchboard, or an officer, employee, or
 
10           agent of a provider of wire or electronic communication
 
11           services, whose facilities are used in the transmission
 
12           of a wire communication, to intercept, disclose, or use
 
13           that communication in the normal course of the
 
14           officer's, employee's, or agent's employment while
 
15           engaged in any activity which is a necessary incident
 
16           to the rendition of the officer's, employee's, or
 
17           agent's service or to the protection of the rights or
 
18           property of the provider of that service; provided that
 
19           such providers of wire communication service to the
 
20           public shall not utilize service observing or random
 
21           monitoring except for mechanical or service quality
 
22           control checks.
 

 
 
 
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 1      (2)  It shall not be unlawful under this part for an
 
 2           officer, employee, or agent of the Federal
 
 3           Communications Commission, in the normal course of the
 
 4           officer's, employee's, or agent's employment and in
 
 5           discharge of the monitoring responsibilities exercised
 
 6           by the Commission in the enforcement of chapter 5 of
 
 7           title 47 of the United States Code, to intercept a wire
 
 8           or electronic communication, or oral communication
 
 9           transmitted by radio, or to disclose or use the
 
10           information thereby obtained.
 
11      (3)  It shall not be unlawful under this part for a person
 
12           not acting under color of law to intercept a wire,
 
13           oral, or electronic communication where such person is
 
14           a party to the communication [or where one of the] and
 
15           all the parties to the communication [has] have given
 
16           prior consent to such interception unless such
 
17           communication is intercepted for the purpose of
 
18           committing any criminal or tortious act in violation of
 
19           the Constitution or laws of the United States or of
 
20           this State; provided that installation in any private
 
21           place, without consent of the person or persons
 
22           entitled to privacy therein, of any device for
 

 
 
 
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 1           recording, amplifying, or broadcasting sounds or events
 
 2           in that place, or use of any such unauthorized
 
 3           installation, or installation or use outside a private
 
 4           place of such device to intercept sounds originating in
 
 5           that place which would not ordinarily be audible or
 
 6           comprehensible outside, without the consent of the
 
 7           person or persons entitled to privacy therein is
 
 8           prohibited[.]; and provided further that interception
 
 9           of a wire or oral communication that is unaccompanied
 
10           by an audible beep at least once every fifteen seconds
 
11           is prohibited.
 
12      (4)  It shall not be unlawful under this part for a person
 
13           acting under color of law to intercept a wire, oral, or
 
14           electronic communication, when such person is a party
 
15           to the communication or one of the parties to the
 
16           communication has given prior consent to such
 
17           interception.
 
18      (5)  It shall not be unlawful under this part for any person
 
19           to intercept a wire, oral, or electronic communication
 
20           or to disclose or use the contents of an intercepted
 
21           communication, when such interception is pursuant to a
 
22           valid court order under this chapter or as otherwise
 

 
 
 
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 1           authorized by law; provided that a communications
 
 2           provider with knowledge of an interception of
 
 3           communications accomplished through the use of the
 
 4           communications provider's facilities shall report the
 
 5           fact and duration of the interception to the
 
 6           administrative director of the courts of this State.
 
 7      (6)  Notwithstanding any other law, providers of wire or
 
 8           electronic communication service, their officers,
 
 9           employees, and agents, landlords, custodians, or other
 
10           persons, are authorized to provide information,
 
11           facilities, or technical assistance to persons
 
12           authorized by law to intercept or access wire, oral, or
 
13           electronic communications, to conduct electronic
 
14           surveillance, or to install a pen register or trap and
 
15           trace device if such provider, its officers, employees,
 
16           or agents, landlord, custodian, or other specified
 
17           person, has been provided with:
 
18           (A)  A court order directing such assistance signed by
 
19                an authorizing judge; or
 
20           (B)  A certification in writing from the Attorney
 
21                General of the United States, the Deputy Attorney
 
22                General of the United States, the Associate
 

 
 
 
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 1                Attorney General of the United States, the
 
 2                attorney general of the State of Hawaii, or the
 
 3                prosecuting attorney for each county that no
 
 4                warrant or court order is required by law, that
 
 5                all statutory requirements have been met, and that
 
 6                the specific assistance is required, setting forth
 
 7                the period of time during which the providing of
 
 8                the information, facilities, or technical
 
 9                assistance is authorized and specifying the
 
10                information, facilities, or technical assistance
 
11                required.
 
12                     No provider of wire or electronic
 
13                communication service, officer, employee, or agent
 
14                thereof, or landlord, custodian, or other
 
15                specified person shall disclose the existence of
 
16                any access, interception, or surveillance or the
 
17                device used to accomplish the interception or
 
18                surveillance for which the person has been
 
19                furnished a court order or certification under
 
20                this part, except as may otherwise be required by
 
21                legal process and then only after prior
 
22                notification to the party that provided the court
 

 
 
 
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 1                order or certification.
 
 2                     No cause of action shall lie in any court
 
 3                against any provider of wire or electronic
 
 4                communication service, its officers, employees, or
 
 5                agents, landlord, custodian, or other specified
 
 6                person for providing information, facilities, or
 
 7                assistance in accordance with the terms of a court
 
 8                order or certification under this part.
 
 9      (7)  It shall not be unlawful under this part for any
 
10           person:
 
11           (A)  To intercept or access an electronic communication
 
12                made through an electronic communication system
 
13                configured so that such electronic communication
 
14                is readily accessible to the general public.
 
15           (B)  To intercept any radio communication which is
 
16                transmitted:
 
17                (i)  By any station for the use of the general
 
18                     public, or that relates to ships, aircraft,
 
19                     vehicles, or persons in distress;
 
20               (ii)  By any governmental, law enforcement, civil
 
21                     defense, private land mobile, or public
 
22                     safety communications system, including
 

 
 
 
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 1                     police and fire, readily accessible to the
 
 2                     general public;
 
 3              (iii)  By a station operating on an authorized
 
 4                     frequency within the bands allocated to the
 
 5                     amateur, citizens band, or general mobile
 
 6                     radio services; or
 
 7               (iv)  By any marine or aeronautical communications
 
 8                     system.
 
 9           (C)  To engage in any conduct which:
 
10                (i)  Is prohibited by section 633 of the
 
11                     Communications Act of 1934; or
 
12               (ii)  Is excepted from the application of section
 
13                     705(a) of the Communications Act of 1934 by
 
14                     section 705(b) of that Act.
 
15           (D)  To intercept any wire or electronic communication
 
16                which is causing harmful interference to any
 
17                lawfully operating station or consumer electronic
 
18                equipment to the extent necessary to identify the
 
19                source of such interference;
 
20           (E)  For users of the same frequency to intercept any
 
21                radio communication made through a system that
 
22                uses frequencies monitored by individuals engaged
 

 
 
 
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 1                in the providing or the use of such system, if
 
 2                such communication is not scrambled or encrypted.
 
 3      (8)  It shall not be unlawful under this part:
 
 4           (A)  To use a pen register or a trap and trace device
 
 5                as specified in this part.
 
 6           (B)  For a provider of electronic communication service
 
 7                to record the fact that a wire or electronic
 
 8                communication was initiated or completed in order
 
 9                to protect such provider, another provider
 
10                furnishing service toward the completion of the
 
11                wire or electronic communication, or a user of
 
12                that service, from fraudulent, unlawful, or
 
13                abusive use of such service.
 
14           (C)  For a provider of electronic or wire communication
 
15                service to use a pen register or a trap and trace
 
16                device for purposes relating to the operation,
 
17                maintenance, and testing of the wire or electronic
 
18                communication service or to the protection of the
 
19                rights or property of such provider, or to the
 
20                protection of users of that service from abuse of
 
21                service or unlawful use of service.
 
22           (D)  To use a pen register or a trap and trace device
 

 
 
 
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 1                where consent of the user of the service has been
 
 2                obtained.
 
 3      (9)  Good faith reliance upon a court order shall be a
 
 4           complete defense to any criminal prosecution for
 
 5           illegal interception, disclosure, or use.
 
 6     (10)  A person or entity providing electronic communication
 
 7           service to the public may divulge the contents of any
 
 8           such communication:
 
 9           (A)  As otherwise authorized by a court order;
 
10           (B)  With the lawful consent of the addressee,
 
11                originator, or intended recipient;
 
12           (C)  To a person employed or authorized, or whose
 
13                facilities are used, to forward such communication
 
14                to its destination; or
 
15           (D)  Which were inadvertently obtained by the service
 
16                provider and which appear to pertain to the
 
17                commission of a crime, if divulged to a law
 
18                enforcement agency."
 
19      SECTION 3.  Statutory material to be repealed is bracketed.
 
20 New statutory material is underscored.
 
21      SECTION 4.  This Act shall take effect upon its approval.
 
22 
 
23                           INTRODUCED BY:  _______________________
 

 
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