Recording Law for Voiceprints & Biometric Data in Hawaii

Hawaii is a one-party consent state for recording oral, wire, or electronic communications. That means you can record a conversation you're part of without telling the other people. The rule comes from Hawaii Revised Statutes § 803-42(b)(3)(A), which says it is not unlawful to intercept a communication when the person recording is a party to the conversation or has the other party's consent. The same section adds that this does not apply if the recording is made to commit a criminal or tortious act. The law also has a separate rule for people acting under color of law, found in § 803-42(b)(4), which works the same way. There is no all-party consent rule in Hawaii, so the one-party consent defense covers in-person talks, phone calls, and electronic communications alike. The statute does not single out phone calls for stricter treatment. The wiretap statute's one-party consent rule is itself gated by the definition of 'oral communication' at HRS § 803-41, which requires that the utterance be made 'exhibiting an expectation that the utterance is not subject to interception under circumstances justifying that expectation.' This codified reasonable-expectation-of-privacy test must be satisfied before the one-party-consent rule can apply.

Hawaii's privacy law, § 711-1111, makes it a misdemeanor to install or use a device to observe or record sounds or events in a 'private place' without consent. § 711-1100 defines a 'private place' as a place where a person may reasonably expect to be safe from casual or hostile intrusion or surveillance, but it excludes places to which the public or a substantial group thereof has access. That means a sidewalk, park, or retail floor is not a private place, but a restroom, fitting room, or a parked car is. The same statute also defines 'public place' as one 'to which the public or a substantial group of persons has access,' including streets, transportation facilities, parks, and businesses. The law also explicitly says recording on-duty police in public is protected, as long as you do not interfere with their duties. This carve-out is in § 711-1111(1)(d), which provides that its private-place recording prohibition '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.'

Hawaii does not have a dedicated biometric privacy law like Illinois' BIPA. There is no statute that requires consent before collecting a voiceprint or sets retention and destruction rules for biometric data. The only related law is Hawaii Revised Statutes Chapter 487N, which covers security breaches of personal information, but its definition of 'personal information' does not include biometric data or voiceprints. Past bills, such as 2023 Senate Bill 1085, which would have created biometric consent and retention requirements, did not pass. A 2026 bill, SB3016, that would have added biometric data to the breach-notification definition also failed to advance. Because no biometric-specific law is in force, there are no pre-collection consent, notice, or retention/destruction requirements for voiceprints under Hawaii law today.

Yes. Hawaii law and case law both protect your right to record on-duty police officers performing their duties in public places. Hawaii Revised Statutes § 711-1111(1)(d) explicitly says the private-place recording ban does not apply when recording a law enforcement officer in a public place if the officer has no reasonable expectation of privacy and the recording does not interfere with the officer's duties. The Hawai‘i Supreme Court's decision in State v. Russo, 138 Hawai‘i 401, 407 P.3d 137 (2017), also recognizes a First Amendment right to film government officials, including police, performing official duties in public. These protections sit alongside Hawaii's one-party consent rule for recording conversations, so you can record both the officer's words and your own conversation with them without violating state law. The Ninth Circuit's Askins v. U.S. Dep't of Homeland Security, 899 F.3d 1035 (9th Cir. 2018), reinforces this right under the First Amendment in the federal context.

Even if a recording is legally allowed under Hawaii's wiretap statute, lawyers face ethics restrictions. Hawai‘i Formal Ethics Opinion No. 30 (1988), issued by the Disciplinary Board of the Hawai‘i Supreme Court, says a lawyer who records a conversation without the other person's prior knowledge and consent acts improperly, even if the recording is not illegal. The opinion calls secret recordings presumptively improper and allows only narrow exceptions, such as when expressly authorized by statute or court order. The opinion is not listed among the currently-in-effect ethics opinions on the Disciplinary Board's website, but it has not been formally withdrawn either. Because its current force is unclear, lawyers should treat undisclosed recording as improper unless they can point to clear authority allowing it in their specific situation. The Disciplinary Board and the Office of Disciplinary Counsel are two distinct, currently coexisting bodies within the same attorney-discipline system.

Hawaii imposes two textually distinct, independently operating consent/privacy gates. First, the one-party-consent wiretap statute, HRS § 803-42(b)(3)(A), is itself gated by the definition of 'oral communication' at HRS § 803-41, which requires that the utterance be made 'exhibiting an expectation that the utterance is not subject to interception under circumstances justifying that expectation.' This is a codified reasonable-expectation-of-privacy test that must be satisfied before the one-party-consent rule can apply. The official annotated case notes to § 803-42 include: 'Does not permit bugging of a private place unless the parties entitled to privacy consent. 66 H. 653, 675 P.2d 754 (1983)' and 'Allows interception of wire or oral communication if one party to the conversation consents to the interception. 67 H. 197, 682 P.2d 79 (1984).' Both citations are confirmed to exist in the official annotation; the full opinions/party names were not independently retrieved in this session. Second, a separate, place-based gate governs the misdemeanor privacy-tort statute, HRS § 711-1111 ('Violation of privacy in the second degree'), which restricts recording only in a 'private place' as defined at HRS § 711-1100. These two gates sit in different statutes and need not be read together. The 'private place' definition excludes places to which the public or a substantial group has access, while the 'oral communication' definition operates independently of location and focuses on the speaker's exhibited expectation of non-interception and the surrounding circumstances.