Recording Law for Recording in Public in Hawaii

Hawaii law allows you to record any conversation you are part of without telling the other person, provided the conversation qualifies as an "oral communication" under Haw. Rev. Stat. § 803-41. The one-party consent rule is set out in Haw. Rev. Stat. § 803-42(b)(3)(A), which provides that it is not unlawful 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 has given prior consent, unless the communication is intercepted for the purpose of committing any criminal or tortious act. The statute defines "oral communication" as any utterance by a person exhibiting an expectation that the utterance is not subject to interception under circumstances justifying that expectation. This means the conversation must be one in which the speaker has a reasonable expectation of privacy, not merely any conversation you are part of. 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)." These case notes are confirmed to exist in the official annotation; the full opinions and party names were not independently retrieved in this session.

Recording in public places like parks, sidewalks, stores, and restaurants is generally allowed under Hawaii law because these locations are not considered "private places" under Haw. Rev. Stat. § 711-1100. The statute defines a "private place" as a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance, but it explicitly excludes "a place to which the public or a substantial group thereof has access." Public places include streets, parks, transportation facilities, and businesses open to the general public. Because these locations are excluded from the definition of "private place," neither the wiretap statute nor the privacy statute restricts recording in these settings, provided you do not violate the separate "oral communication" expectation-of-privacy test under Haw. Rev. Stat. § 803-41. That test requires both a subjective exhibited expectation of privacy and objective circumstances justifying it; if a conversation is shouted loudly so that it is clearly audible to everyone nearby with no effort, it may not meet this expectation and thus may not be protected by the one-party consent rule. The wiretap statute's one-party consent rule applies uniformly to in-person, phone, and electronic/digital communications alike under § 803-42(b)(3)(A), and there is no separate all-party rule carved out for telephone calls specifically.

Hawaii law and federal court rulings both protect your right to record on-duty police officers performing their official duties in public. Haw. Rev. Stat. § 711-1111(1)(d) expressly 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." The Ninth Circuit Court of Appeals, which covers Hawaii, has also recognized a First Amendment right to record police officers performing official duties in public places in Askins v. U.S. Dep't of Homeland Security, 899 F.3d 1035 (9th Cir. 2018). More directly, the Hawai'i Supreme Court held in State v. Russo, 138 Hawai'i 401, 407 P.3d 137 (2017) (SCWC-14-0000986), that filming government officials, including police officers performing official 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. Separately, Haw. Rev. Stat. § 803-42(b)(3)(A) allows any person (party or one-party-consented) to record a communication they are part of, and § 803-42(b)(4) gives the same one-party consent latitude to a person acting under color of law — so a civilian recording their own encounter with police satisfies the wiretap statute's one-party consent exception regardless of the § 711-1111 carve-out.

Silent video recording in public places is not restricted by Hawaii’s wiretap law because that law only covers conversations with an expectation of privacy under Haw. Rev. Stat. § 803-41. However, a separate statute, Haw. Rev. Stat. § 711-1111, independently criminalizes installing or using any device for observing, recording, amplifying, or broadcasting sounds or events in a "private place" without the consent of the person entitled to privacy there. The statute defines a "private place" as a place where one 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 has access. This means that while silent video recording in a public place is unrestricted, recording in a private place — such as a home, bathroom, fitting room, or other enclosed space not open to the public — is prohibited without consent, regardless of whether you are a party to the conversation. Only the wiretap statute’s one-party consent rule applies to conversations you are part of; the private-place statute applies to the location itself. The carve-out for recording on-duty police in public under Haw. Rev. Stat. § 711-1111(1)(d) applies to both video and audio recording in public settings. The wiretap statute's one-party consent rule applies uniformly to in-person, phone, and electronic/digital communications alike under § 803-42(b)(3)(A), and there is no separate all-party rule carved out for telephone calls specifically.

Imagine you’re sitting in a coffee shop when two people at the next table start arguing loudly. You pull out your phone and record the conversation because you’re worried things might escalate. Under Hawaii law, this is allowed only if the conversation qualifies as an "oral communication" under Haw. Rev. Stat. § 803-41 — meaning the speakers exhibited an expectation that the utterance was not subject to interception under circumstances justifying that expectation. If the conversation is shouted loudly so that it is clearly audible to everyone nearby with no effort, it may not meet this expectation and thus may not be protected by the one-party consent rule. But if the speakers are speaking in lowered voices and physically withdraw from others, creating a reasonable expectation of privacy despite the public setting, the one-party consent rule applies and you may record. If the same argument happened in a closed office with the door shut, recording without consent could violate Hawaii’s privacy law under Haw. Rev. Stat. § 711-1111 because the office would typically qualify as a private place. Always consider both the setting and the speakers’ conduct before you record.

Even though Hawaii law allows one-party recording in certain circumstances, lawyers in Hawaii must follow strict ethical rules. Hawai'i Formal Ethics Opinion No. 30 (1988), issued by the Disciplinary Board of the Hawai'i Supreme Court, states that lawyers cannot secretly record conversations with others, regardless of whether such conduct is legal under state law. The opinion explains: "Therefore no lawyer should record or cause to be recorded any conversation, whether by taps or other electronic device, without the consent or prior knowledge of all parties to the conversation." It carves out a narrow exception for situations where the law or a court order expressly authorizes secret recording, but such situations are rare. This rule applies only to lawyers and does not govern the conduct of the general public. The Disciplinary Board and the Office of Disciplinary Counsel are two distinct, currently-coexisting entities within the same attorney-discipline system; neither replaced the other, and both are still active today.

Hawaii law provides both criminal and civil penalties for illegal recording. Under Haw. Rev. Stat. § 803-42, unlawful interception of wire, oral, or electronic communications is a Class C felony. Separately, Haw. Rev. Stat. § 711-1111 makes it a misdemeanor to install or use a device to record sounds or events in a private place without consent. In addition, Haw. Rev. Stat. § 803-48 creates a private civil cause of action for violations of the wiretap statute, allowing recovery of actual damages, profits, or statutory damages (the greater of $100 per day or $10,000), plus equitable or declaratory relief. A good-faith reliance on a court order defense is available. These penalties apply regardless of whether the recording was intended to harm or was merely negligent. The civil remedy provision at § 803-48 applies to violations of § 803-42 and is enforceable by the aggrieved party.

Hawaii law and federal precedent provide strong protections for recording on-duty police officers in public, but there are important limits. Under Haw. Rev. Stat. § 711-1111(1)(d), you may record a law enforcement officer performing official duties in a public place or where the officer has no reasonable expectation of privacy, provided you do not interfere 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. The Hawai'i Supreme Court’s decision in State v. Russo, 138 Hawai'i 401, 407 P.3d 137 (2017), confirms that filming police officers performing their duties in public is protected by the First Amendment and article I, section 4 of the Hawai'i Constitution, subject to narrowly tailored time, place, and manner restrictions tied to genuine interference. Even without the statutory carve-out, the one-party consent rule in Haw. Rev. Stat. § 803-42(b)(3)(A) allows any participant in a conversation to record it, including interactions with police, as long as the conversation qualifies as an "oral communication" under Haw. Rev. Stat. § 803-41. The Ninth Circuit Court of Appeals, which covers Hawaii, has also recognized a First Amendment right to record police officers performing official duties in public places in Askins v. U.S. Dep't of Homeland Security, 899 F.3d 1035 (9th Cir. 2018).