Recording Law for Employers & Businesses in Hawaii

Hawaii lets you record any conversation you are part of without telling the other person first. This is called one-party consent. The rule comes from Hawaii’s wiretap statute, Haw. Rev. Stat. § 803-42(b)(3)(A), which provides that it is not unlawful to intercept a wire, oral, or electronic communication when the person intercepting is a party to the conversation or has the consent of one party. The law applies whether the conversation happens in person, on the phone, or through another electronic channel. The only exception is if the recording is made to commit a crime or a tort. Penalties for violating the wiretap statute include a Class C felony, and a private civil cause of action under Haw. Rev. Stat. § 803-48 allows recovery of actual damages, profits, or statutory damages (the greater of $100 per day or $10,000), plus equitable relief and attorneys’ fees. For employers, this means you can record customer service calls or in-person interactions with employees as long as at least one person in the conversation (for example, the employee handling the call) knows about and consents to the recording.

Exceptions and penalties under Hawaii’s wiretap law

Hawaii’s wiretap statute, Haw. Rev. Stat. § 803-42, applies to wire, oral, and electronic communications and contains a one-party consent exception at § 803-42(b)(3)(A). The statute also includes a parallel one-party consent provision for persons acting under color of law at § 803-42(b)(4). The law explicitly states that the one-party consent defense does not apply if the communication is intercepted for the purpose of committing any criminal or tortious act. Violations are punishable as a Class C felony. In addition, Haw. Rev. Stat. § 803-48 creates a private right of action for aggrieved parties, allowing recovery of actual damages sustained, any profits made by the violator, or statutory damages of the greater of $100 per day or $10,000, plus reasonable attorneys’ fees and equitable or declaratory relief. A good-faith reliance on a court order defense is also available under § 803-48.

The upstream 'oral communication' gate

Before the one-party consent rule can apply, the utterance must first qualify as an 'oral communication' under Haw. Rev. Stat. § 803-41, which requires that an 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 operates independently of location and must be satisfied for the § 803-42(b)(3)(A) one-party consent defense to be available. The official annotated case notes to § 803-42 include two decisions construing related points: 66 H. 653, 675 P.2d 754 (1983) and 67 H. 197, 682 P.2d 79 (1984); citation to these notes is confirmed to exist in the official annotation, though the full opinions and party names were not independently retrieved in this session.

Hawaii has a clear rule protecting your right to record on-duty police officers performing their duties in public. Haw. Rev. Stat. § 711-1111(1)(d) says the law against secretly recording in a private place does not stop you from making a video or audio recording or taking a photograph of a law enforcement officer while the officer is on duty in a public place, as long as you do not interfere with the officer’s ability to do their job. This is reinforced by the state’s one-party consent wiretap rule and by federal and state precedent recognizing a First Amendment right to record police activity in public. The Ninth Circuit has ruled that the First Amendment protects recording police officers performing official duties in public, as seen in Askins v. U.S. Dep’t of Homeland Security, 899 F.3d 1035 (9th Cir. 2018). A stronger Hawaii-specific case, State v. Russo, 138 Hawai‘i 401, 407 P.3d 137 (Haw. 2017), directly protects filming government officials, including police, in public. State v. Russo held, under both the First Amendment and article I, section 4 of the Hawai‘i Constitution, that filming government officials—including police officers performing their duties in a public place—is constitutionally protected, subject to narrowly tailored, clearly communicated time, place, and manner restrictions tied to genuine interference with official duties.

How the upstream 'oral communication' gate interacts with public recording

Hawaii’s wiretap statute is itself gated by an upstream definition of 'oral communication' at Haw. Rev. Stat. § 803-41, which requires that an 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 at § 803-42(b)(3)(A) can apply. The official annotated case notes to § 803-42 include two decisions construing related points: 66 H. 653, 675 P.2d 754 (1983) and 67 H. 197, 682 P.2d 79 (1984); citation to these notes is confirmed to exist in the official annotation, though the full opinions and party names were not independently retrieved in this session.

Hawaii’s wiretap law only covers conversations with an expectation of privacy, so silent video without audio is not regulated by that law. However, a separate privacy law, Haw. Rev. Stat. § 711-1111, makes it a misdemeanor to use a device to observe or record events in a “private place” without consent. Haw. Rev. Stat. § 711-1100 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.' So, recording silent video in public areas like sidewalks, parks, or retail floors is generally allowed. But recording silent video inside a bathroom, fitting room, or other enclosed space where people expect privacy would violate the law.

Statutory carve-out for recording on-duty police in public

Hawaii’s privacy statute expressly carves out law-enforcement recording in public. Haw. Rev. Stat. § 711-1111(1)(d) 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.' This carve-out operates alongside the one-party consent wiretap rule and the First Amendment protections recognized in State v. Russo and Askins.

Hawaii does not have a state law that requires special consent before collecting or using biometric data like voiceprints. The only relevant enacted law is Hawaii’s data breach notification statute, Haw. Rev. Stat. Ch. 487N, which only covers traditional personal information such as Social Security numbers, driver’s license numbers, and financial account numbers. It does not include biometric data or voiceprints within its definition of 'personal information.' A bill that would have created a biometric privacy law, Senate Bill 1085 (2023/2024), died in committee and was not enacted; the bill would have required written notice, a written release (consent) before collection, a retention/destruction schedule, and prohibited sale or profit from biometric data, but it lapsed without a floor vote. Because no law currently requires consent for voiceprints, employers are not legally required to get consent before recording or processing voiceprints for workplace use. This is a live legislative area; bills in this space have been reintroduced across multiple sessions, so it should be re-checked each legislative session (typically January–May).

Even when recording is legal under Hawaii’s wiretap and privacy laws, lawyers in Hawaii must follow ethics rules that can be stricter. Hawai‘i Formal Ethics Opinion No. 30 (1988), issued by the Disciplinary Board of the Hawai‘i Supreme Court, says a lawyer may not secretly record a conversation with another person, even if the recording is not illegal. The opinion states that such conduct offends the high standard of fairness and candor expected in the legal profession and must be deemed improper, except in extraordinary circumstances sanctioned by law. While the opinion is not listed among the currently in-effect ethics opinions on the Disciplinary Board’s website, it has not been formally withdrawn and remains a cautionary guide. The Disciplinary Board and the Office of Disciplinary Counsel are distinct, currently coexisting bodies within the same attorney-discipline system; neither replaced the other. Employers should be aware that if their staff includes attorneys or if legal advice is involved, ethics rules may require consent even when the law does not.

Imagine a retail employee is helping a customer who becomes angry and starts raising their voice in the middle of the store. The employee is wearing a smartglass device that records audio and video. Under Hawaii’s one-party consent rule, the employee can legally record the conversation because the employee is part of the interaction, provided the utterance clears the § 803-41 'oral communication' gate (exhibited subjective expectation of privacy plus objective justifying circumstances). The recording happens in a public area of the store, so the silent video is not restricted by the private-place rule. If the customer later claims the recording violated their privacy, the employee’s participation in the conversation satisfies the law. The employee should still follow store policy and treat the customer professionally, but the law supports the recording as long as it is done openly and for a legitimate business purpose.