Recording Law for Recording at Home in Hawaii

Under Hawaii’s wiretap statute, HRS § 803-42, you can record a conversation you are part of without telling the other person if the communication qualifies as a wire, oral, or electronic communication under the statute and the one-party consent rule applies. The statute’s one-party consent exception at HRS § 803-42(b)(3)(A) allows you to record if you are a participant and one party has consented — which, in this context, is you. Whether the communication qualifies depends on the facts and the upstream definition of 'oral communication' at HRS § 803-41, which requires an utterance by a person exhibiting an expectation that the utterance is not subject to interception under circumstances justifying that expectation. The same two-step analysis applies whether you’re recording in your own home or someone else’s: first, does the communication qualify as a wire, oral, or electronic communication under § 803-42, and second, are you a participating party under § 803-42(b)(3)(A)? The official case notes to § 803-42 cite two Hawaii decisions addressing related points — 66 H. 653, 675 P.2d 754 (1983) and 67 H. 197, 682 P.2d 79 (1984) — though the full opinions were not independently retrieved in this verification pass.

Hawaii’s privacy statute, HRS § 711-1111(1)(d), makes it a misdemeanor to install or use any device to observe, record, amplify, or broadcast sounds or events in a 'private place' without the consent of the person entitled to privacy there. A home is typically a private place under HRS § 711-1100, which defines a private place as a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance, but does not include a place to which the public or a substantial group thereof has access. Because § 711-1111(1)(d) expressly reaches 'events' (not just sounds), silent video or photos taken inside a home can violate this law even if no audio is captured. The statute’s carve-out for on-duty police in public is limited to that specific context and does not affect the private-place rule.

Hawaii’s statutes define a private place and a public place in HRS § 711-1100. A private place is a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance, but it does not include a place to which the public or a substantial group thereof has access. A living room hosting a small gathering is usually private. A coffee shop floor is not. A public restroom stall is private. A public park bench is not. If the place is private, recording without consent runs the risk of violating HRS § 711-1111. The wiretap statute’s one-party consent rule at HRS § 803-42(b)(3)(A) operates independently of the private-place analysis: it allows you to record a communication you are part of if the communication qualifies as a wire, oral, or electronic communication under HRS § 803-42 and the utterance qualifies as an 'oral communication' under HRS § 803-41, regardless of whether the location is a private place or a public place.

Hawaii law and federal and state court rulings protect your right to record on-duty police officers performing their duties in public, as long as you do not interfere. The state’s privacy statute explicitly carves out this protection: HRS § 711-1111(1)(d) provides that its prohibition on recording in a private place 'shall not prohibit a person from making a video or audio recording or taking a photograph of a law enforcement officer while the officer is in the performance of the officer's duties in a public place or under circumstances in which the officer has no reasonable expectation of privacy and the person is not interfering with the officer's ability to maintain safety and control, secure crime scenes and accident sites, protect the integrity and confidentiality of investigations, and protect the public safety and order.' Separately, the wiretap statute’s one-party consent rule at HRS § 803-42(b)(3)(A) allows any person who is a party to a communication to record it, and the color-of-law provision at § 803-42(b)(4) gives the same latitude to a person acting under color of law. Hawaii sits within the U.S. Court of Appeals for the Ninth Circuit, which has recognized a First Amendment right to record matters of public interest, including police performing official duties in public places — see Askins v. U.S. Dep’t of Homeland Security, 899 F.3d 1035 (9th Cir. 2018) (reversing dismissal and holding the First Amendment protects photographing/recording of law enforcement activity in public places; the case later settled in 2020 with a consent agreement). More directly, the Hawai‘i Supreme Court has held that filming government officials, including police officers performing their duties in a public place, is protected by the First Amendment and article I, section 4 of the Hawai‘i Constitution, subject to narrowly-tailored, clearly-communicated restrictions genuinely tied to interference with duties — State v. Russo, 138 Hawai‘i 401, 407 P.3d 137 (Haw. 2017), SCWC-14-0000986 (decided Dec. 14, 2017). Russo is controlling in Hawai‘i state courts and directly concerns filming police, making it the more authoritative and on-point precedent for Hawai‘i residents.

Breaking Hawaii’s wiretap law, HRS § 803-42, is a Class C felony. Separately, violating the private-place recording law, HRS § 711-1111, is a misdemeanor. On top of criminal exposure, you can be sued for money damages by anyone whose conversation or privacy was illegally recorded. HRS § 803-48 provides a private civil cause of action with actual damages, profits made from the recording, or statutory damages of the greater of $100 per day or $10,000, plus equitable relief including destruction of the recording and reasonable attorneys’ fees. The statute also recognizes a good-faith reliance on a court order defense. These penalties apply whether the recording happened in your home or someone else’s, and whether it involved audio, video, or both. The civil remedy is enforceable by the person whose communication or privacy was violated; the Attorney General or the Executive Director of the Office of Consumer Protection may also pursue enforcement for violations of the breach-notification statute (HRS Ch. 487N), though that statute does not cover biometric data.

Imagine you’re in your living room arguing with a family member. You’re speaking in a normal voice, not trying to keep the conversation private. You record the conversation on your phone without telling them. Under Hawaii’s wiretap law, this could be legal because you’re a participant and the communication may qualify as a wire, oral, or electronic communication under HRS § 803-42 if the utterance qualifies as an 'oral communication' under HRS § 803-41 — meaning the speaker exhibited an expectation it wouldn’t be overheard and the circumstances justified that expectation. But if you set up a hidden camera in the same room to record the argument while you’re not there, that silent video could violate the private-place rule at HRS § 711-1111 because your home is a private place and you didn’t consent to being recorded. Whether either recording is okay depends on the exact facts — a lawyer can tell you how it plays out for your situation. If the argument spills into a public park, you can record it under the wiretap statute’s one-party consent rule and under the statutory carve-out for recording on-duty police in public, provided you do not interfere with police duties.

Hawaii’s wiretap statute, HRS § 803-42, allows you to record any conversation you are part of in a public space without telling the other person, provided the communication qualifies as a wire, oral, or electronic communication under the statute. The one-party consent exception at HRS § 803-42(b)(3)(A) applies regardless of location, so a participant may record a public dispute or interaction. However, the upstream definition of 'oral communication' at HRS § 803-41 still applies: the speaker must have exhibited an expectation that the utterance was not subject to interception and the circumstances must justify that expectation. If the utterance is shouted loudly in a public place with no expectation of confidentiality, it may not qualify as an 'oral communication' at all, and the wiretap statute’s consent requirement never triggers. Separately, the private-place statute, HRS § 711-1111, does not restrict recording in public places because it applies only to conduct in or originating from a 'private place' as defined in HRS § 711-1100. The wiretap statute’s one-party consent rule and the public-place exception operate independently.