Recording Law for Police & Civil Rights in Hawaii

Yes. Hawaii law expressly protects the right to record on-duty police officers performing their duties in public places, provided the recording does not interfere with law enforcement functions. 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 statutory carve-out is reinforced by Hawaii's one-party consent rule for audio recording under Haw. Rev. Stat. § 803-42(b)(3)(A), which allows any person to record a communication they are part of without notice to other parties. The protection is further bolstered by the Hawai‘i Supreme Court's decision in State v. Russo, 138 Hawai'i 401, 407 P.3d 137 (Haw. 2017), which recognized that filming government officials—including police officers performing official duties in a public place—is protected activity under 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 duties. For example, if you are pulled over and the officer is speaking to you in a public area, you may record both the video and audio of that interaction without asking for consent, as long as you do not interfere with the officer's duties.

Hawaii is a one-party consent state under Haw. Rev. Stat. § 803-42. The operative text of the statute provides: "It shall not be unlawful under this part for a person not acting under color of law to intercept a wire, oral, or electronic communication when the person is a party to the communication or when one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of this State." This means you can legally record any conversation you are part of—whether in person, by phone, or through electronic means—without informing the other person. The one-party consent rule applies uniformly to wire, oral, and electronic communications under Haw. Rev. Stat. § 803-42(b)(3)(A). However, the law includes an exception: you cannot record for the purpose of committing a crime or tort. This one-party consent rule covers your own conversations, including those with police during public encounters, and also extends to a person acting under color of law under Haw. Rev. Stat. § 803-42(b)(4).

Hawaii's wiretap statute, Haw. Rev. Stat. § 803-42, applies only to "wire, oral, or electronic communication." The definition of "oral communication" in Haw. Rev. Stat. § 803-41 requires an uttered communication made with an expectation that it is not subject to interception under circumstances justifying that expectation. Silent, soundless video or image capture does not meet this definition because it does not involve an utterance. However, a separate statute, Haw. Rev. Stat. § 711-1111(1)(d) (Violation of privacy in the second degree), independently criminalizes installing or using "any means or device for observing, recording, amplifying, or broadcasting sounds or events" in a "private place" without consent of the person entitled to privacy there. The term "events" in this statute reaches silent video/image recording, but only inside a statutorily defined "private place" under Haw. Rev. Stat. § 711-1100, which excludes places to which the public or a substantial group has access. Therefore, silent video recording in a public place, or of a public-facing dispute, interaction, or on-duty police encounter, is not restricted by either statute. In contrast, silent video recording inside a private residence or other private place without consent may violate Haw. Rev. Stat. § 711-1111(1)(d).

You can record in public places like streets, parks, or businesses open to customers without restriction under Hawaii law. Haw. Rev. Stat. § 711-1100 defines a "public place" as one "to which the public or a substantial group of persons has access," which includes transportation facilities, parks, and commercial areas. You may record your own conversations in any location under the one-party consent rule, which applies uniformly regardless of where the conversation occurs. The key exception is for recording on-duty police in public, which is explicitly protected under Haw. Rev. Stat. § 711-1111(1)(d) and reinforced by the one-party consent rule under Haw. Rev. Stat. § 803-42(b)(3)(A). The definition of "private place" in Haw. Rev. Stat. § 711-1100 excludes places to which the public or a substantial group has access, so a home typically qualifies as a private place for purposes of the privacy statute, but the one-party consent rule still allows you to record your own conversations within that private place.

Hawaii's privacy statute, Haw. Rev. Stat. § 711-1111, restricts recording in a "private place" as defined in Haw. Rev. Stat. § 711-1100: "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." This definition encompasses enclosed areas like bathrooms, fitting rooms, locker rooms, and parked cars, even when located within a public venue. It also includes residential homes and private offices. The statute criminalizes installing or using a device to observe, record, amplify, or broadcast sounds or events in such a private place without the consent of the person entitled to privacy there. The one-party consent rule under Haw. Rev. Stat. § 803-42(b)(3)(A) allows you to record your own conversations in a private place, but it does not extend to recording others' private conversations in that space without their consent. For example, if you are in your home and recording a conversation you are part of, that is permitted; if you record a conversation between two other people in your home without their consent, that may violate Haw. Rev. Stat. § 711-1111.

Hawaii law protects your right to record police in public, but you cannot interfere with their ability to perform their duties. Haw. Rev. Stat. § 711-1111(1)(d) explicitly states that the recording exception applies only when 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 means you must maintain a safe distance, avoid blocking the officer's movements, and refrain from actions that could create a safety hazard or disrupt official operations. For example, standing across the street with your phone recording a traffic stop is generally permissible, but stepping into the middle of the road, shouting to provoke a reaction, or physically obstructing the officer could cross into interference. The Hawai‘i Supreme Court's decision in State v. Russo, 138 Hawai'i 401, 407 P.3d 137 (Haw. 2017), reinforces that recording is protected so long as it does not involve such interference.

Violating Hawaii's recording laws can lead to both criminal and civil penalties. Under the wiretapping law, Haw. Rev. Stat. § 803-42, illegal recording may result in penalties provided by law. The privacy violation law, Haw. Rev. Stat. § 711-1111, makes unauthorized recording in a private place a misdemeanor. You could also face a civil lawsuit under Haw. Rev. Stat. § 803-48, which provides a private right of action for actual damages, profits made from the recording, or statutory damages—the greater of $100/day or $10,000—plus attorney fees and equitable relief such as injunctive relief or destruction of the recording. The statute also provides an affirmative defense for good-faith reliance on a court order or statutory authorization. However, if you were recording on-duty police in public for a legitimate purpose, these penalties likely do not apply due to the explicit statutory carve-out in Haw. Rev. Stat. § 711-1111(1)(d).

Imagine you are driving in Honolulu when an officer pulls you over on a public street. You place your phone on the dashboard and start recording both video and audio of the entire interaction. The officer asks what you are doing and seems annoyed. You explain you are recording the stop for your own protection. In this situation, Hawaii law protects your right to record. The one-party consent law under Haw. Rev. Stat. § 803-42(b)(3)(A) allows you to record your conversation with the officer since you are part of it, and the specific exception for recording police in public under Haw. Rev. Stat. § 711-1111(1)(d) covers the video recording. As long as you remain at a safe distance, avoid obstructing the officer's work, and do not create a safety hazard, you are acting within your rights. The Hawai‘i Supreme Court's decision in State v. Russo, 138 Hawai'i 401, 407 P.3d 137 (Haw. 2017), confirms that such recording is constitutionally protected activity.