Recording Law for Family Law in Hawaii

Hawaii’s wiretap law says it’s legal to record any conversation you’re part of without telling the other person. The key statute is Hawaii Revised Statutes § 803-42, which makes it legal for someone not acting under color of law to intercept a wire, oral, or electronic communication if they are a party to the conversation or have consent from one party. This applies whether you’re talking in person, on the phone, or through an app. The law also says this is only illegal if the recording is made to commit a crime or tort. So if you’re in a dispute with a spouse, partner, or family member, you can record your own side of the conversation without their knowledge as long as you’re part of it.

Hawaii has two laws that protect your right to record in public. First, the wiretap statute’s one-party consent rule still applies, so recording your own conversation is legal. Second, Hawaii Revised Statutes § 711-1111(1)(d) expressly 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." State v. Russo, 138 Hawai'i 401, 407 P.3d 137 (Haw. 2017), the Hawai'i Supreme Court’s controlling decision, further holds 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 time/place/manner restrictions tied to genuine interference with official duties. The Ninth Circuit’s Askins v. U.S. Dep't of Homeland Security, 899 F.3d 1035 (9th Cir. 2018) (later settled in 2020) likewise recognizes a First Amendment right to record law enforcement activity in public places. So if you’re recording a custody exchange in a parking lot or a dispute in a park, you’re on solid ground as long as you don’t interfere with what’s happening.

Hawaii Revised Statutes § 711-1111 makes it a crime to record sounds or events in a "private place" without consent. A private place is defined in Hawaii Revised Statutes § 711-1100 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 — such as a home, a bedroom, or a bathroom. No statutory language in § 803-42 or § 711-1111 gives a person's own home special/different treatment from other locations — the operative statutory category is "private place," not "one's own home" specifically. A home would typically qualify as a private place, meaning the statute would bar covert surveillance installed without the consent of an occupant of that private place, not at a participant openly recording their own encounter. The wiretap statute’s one-party consent rule at § 803-42(b)(3)(A) only covers conversations you’re part of, not someone else’s private conversation in a private space. So if you’re recording a conversation between others in a private place, you could face penalties.

Hawaii’s wiretap law only covers conversations — it doesn’t apply to silent video recording. But Hawaii Revised Statutes § 711-1111 also bans using a device to observe or record events in a private place without consent. A private place is defined in Hawaii Revised Statutes § 711-1100 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. A home would typically qualify as a private place, meaning the statute would bar covert surveillance installed without the consent of an occupant of that private place, not at a participant openly recording their own encounter. So while you can film in public without issue, recording silent video in a private place could violate this separate law.

Imagine you’re at a public park picking up your child for a weekend visit. Your ex shows up late and starts arguing loudly in the parking lot. You pull out your phone and start recording the conversation. Under Hawaii law, this is legal because you’re part of the conversation, it’s happening in a public place, and you’re not interfering with the exchange. The recording could later be used in court to show your ex’s behavior. But if the same argument happens inside your ex’s car, recording it without their consent could be illegal because it’s a private space.

Recording illegally in Hawaii can lead to both criminal and civil penalties. Under the wiretap statute, violating § 803-42 is a Class C felony. Under the privacy statute, violating § 711-1111 is a misdemeanor. You can also be sued for damages under § 803-48, which allows the injured party to recover actual damages, profits made from the recording, or statutory damages of the greater of $100 per day or $10,000, whichever is greater. The law does allow a defense if you reasonably relied on a court order, but that’s rare in family disputes. Penalties depend on the facts, so consult a lawyer if you’re unsure whether your recording was legal.