Hawaii-2016-HB2114-Introduced

SECTION 1. The legislature finds that Hawaii's existing penal code does not adequately address situations in which technological advances have provided unique equipment that may be utilized for unauthorized surveillance purposes. Technological advances such as the development of unmanned aircraft systems, or drones, often outpace statutory protections and present substantial privacy risks. The legislature further finds that the proliferation and accessibility of unmanned aircraft systems throughout the State have created concerns about a person's right to privacy in the home.

The legislature also finds that the term "device" may cover all technological improvements resulting in new devices, and that using the term "devices" will prevent the need to change the violation of privacy statutes each time a new device is created.

The purpose of this Act is to amend the offenses of violation of privacy in the first and second degree to protect a person's right to privacy in the home from devices.

SECTION 2. Section 711-1110.9, Hawaii Revised Statutes, is amended to read as follows:

"§711-1110.9 Violation of privacy in the first degree. (1) A person commits the offense of violation of privacy in the first degree if, except in the execution of a public duty or as authorized by law:

(a) The person intentionally or knowingly installs or uses, [~~or both,~~] in any private place, [~~without consent of the person or persons entitled to privacy therein,~~] any device for observing, recording, amplifying, or broadcasting another person in a stage of undress or sexual activity in that place[~~; or~~], without the consent of the person or persons entitled to privacy therein;

(b) The person knowingly installs or uses outside a private place any device for observing, recording, amplifying, or broadcasting another person in a stage of undress or sexual activity in that private place which would not ordinarily be visible, audible, or comprehensible outside, without the consent of the person or persons entitled to privacy therein; or

[~~(b)~~] (c) The person knowingly discloses an image or video of another identifiable person either in the nude, as defined in section 712-1210, or engaging in sexual conduct, as defined in section 712-1210, without the consent of the depicted person, with intent to harm substantially the depicted person with respect to that person's health, safety, business, calling, career, financial condition, reputation, or personal relationships; provided that:

(i) This paragraph shall not apply to images or videos of the depicted person made:

(A) When the person was voluntarily nude in public or voluntarily engaging in sexual conduct in public; or

(B) Pursuant to a voluntary commercial transaction; and

(ii) Nothing in this paragraph shall be construed to impose liability on a provider of "electronic communication service" or "remote computing service" as those terms are defined in section 803-41, for an image or video disclosed through the electronic communication service or remote computing service by another person.

(2) Violation of privacy in the first degree is a class C felony. In addition to any penalties the court may impose, the court may order the destruction of any recording made in violation of this section.

(3) For the purposes of this section, "device" means any system consisting of an unmanned aircraft that is remotely controlled by the use of data links and on board sensors."

SECTION 3. Section 711-1111, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (1) to read:

"(1) A person commits the offense of violation of privacy in the second degree if, except in the execution of a public duty or as authorized by law, the person intentionally:

(a) Trespasses on property for the purpose of subjecting anyone to eavesdropping or other surveillance in a private place;

(b) Peers or peeps into a window or other opening of a dwelling or other structure adapted for sojourn or overnight accommodations for the purpose of spying on the occupant thereof or invading the privacy of another person with a lewd or unlawful purpose, under circumstances in which a reasonable person in the dwelling or other structure would not expect to be observed;

(d) Installs or uses, [~~or both,~~] in any private place, [~~without consent of the person or persons entitled to privacy therein,~~] any [~~means or~~] device for observing, recording, amplifying, or broadcasting sounds or events in that place other than another person in a stage of undress or sexual activity[;], without the consent of the person or persons entitled to privacy therein;

(e) Installs or uses outside a private place any device for observing, hearing, recording, amplifying, or broadcasting sounds [~~originating~~] or events occurring in that place which would not ordinarily be visible, audible, or comprehensible outside, without the consent of the person or persons entitled to privacy therein;

(f) Covertly records or broadcasts an image of another person's intimate area underneath clothing, by use of any device, and that image is taken while that person is in a public place and without that person's consent;

(g) Intercepts, without the consent of the sender or receiver, a message or photographic image by telephone, telegraph, letter, electronic transmission, or other means of communicating privately; but this paragraph does not apply to:

(i) Overhearing of messages through a regularly installed instrument on a telephone party line or an extension; or

(ii) Interception by the telephone company, electronic mail account provider, or telephone or electronic mail subscriber incident to enforcement of regulations limiting use of the facilities or incident to other operation and use;

(h) Divulges, without the consent of the sender or the receiver, the existence or contents of any message or photographic image by telephone, telegraph, letter, electronic transmission, or other means of communicating privately, if the accused knows that the message or photographic image was unlawfully intercepted or if the accused learned of the message or photographic image in the course of employment with an agency engaged in transmitting it; or

(i) Knowingly possesses materials created under circumstances prohibited in section 711-1110.9."

2. By amending subsection (3) to read:

"(3) For the purposes of this section:

"Device" means any system consisting of an unmanned aircraft that is remotely controlled by the use of data links and on board sensors.

"Intimate areas" means any portion of a person's underwear, pubic area, anus, buttocks, vulva, genitals, or female breast.

"Intimate areas underneath clothing" does not include intimate areas visible through a person's clothing or intimate areas exposed in public.

"Public place" means an area generally open to the public, regardless of whether it is privately owned, and includes but is not limited to streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, buses, tunnels, buildings, stores, and restaurants."

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	2114
TWENTY-EIGHTH LEGISLATURE, 2016
STATE OF HAWAII