Recording Law for Streamers & Creators in Hawaii

Hawaii lets you record any conversation you take part in without telling the other person first. This is called "one-party consent." The rule comes from Hawaii’s wiretapping law, which 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 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 applies whether you’re talking in person, on the phone, or through a live stream. So if you’re part of the conversation, you’re allowed to hit record.

Hawaii has a clear rule protecting your right to record on-duty police officers performing their duties in public. State law provides: "This subsection 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 protection is also supported by the Hawai‘i Supreme Court’s December 14, 2017 decision in State v. Russo, 138 Hawai‘i 401, 407 P.3d 137 (Haw. 2017), which held 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.

Recording video without sound in public places is generally allowed, but there’s a catch. Hawaii’s wiretapping law contains two distinct, independently-operating gates. First, the law defines an "oral communication" as "any utterance by a person exhibiting an expectation that the utterance is not subject to interception under circumstances justifying that expectation." If a speaker’s words do not meet this exhibited-expectation-plus-justifying-circumstances test, they fall outside the wiretapping statute’s coverage entirely, regardless of location. Second, a separate statute restricts recording only in a "private place" as defined elsewhere, which excludes places open to the public or a substantial group of people. So if someone speaks loudly in a public place with no effort to keep their words private, their words may not qualify as a protected "oral communication" under the wiretap statute. But if they lower their voice, step aside, or otherwise signal they expect privacy, the one-party consent rule still applies to you if you’re part of the conversation. The key is whether the speaker’s actions show they expected their words wouldn’t be overheard, not just where the conversation happens. Hawaii’s appellate courts have not squarely defined a broader reasonable-expectation-of-privacy test for recording outside these statutes, so courts look to the statutory text itself.

Hawaii makes it a crime to secretly record sounds or events in a "private place" without consent. A private place includes homes, but also any location where people reasonably expect privacy, like a bathroom or a fitting room. The law provides: "A person commits the offense of violation of privacy in the second degree if, without the consent of the person or persons entitled to privacy therein, the person ... installs or uses any device for observing, recording, amplifying, or broadcasting sounds or events in a private place." This means if you bring a camera or microphone into someone’s home or another private space without telling them, you could be breaking the law, even if you’re part of the conversation. The law doesn’t give special treatment to your own home—it’s about the space’s privacy status, not who owns it.

A private place isn’t just a home. It’s any location where people reasonably expect to be safe from casual or hostile intrusion or surveillance. This includes bathrooms, changing rooms, locker rooms, and even a private office or meeting room in a public building. The law 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 filming in a grocery store or on a public sidewalk is usually fine, but recording inside a dressing room or a private back office without consent could be illegal. The key is whether the space is set up to keep outsiders from overhearing or watching. Note that Hawaii’s express statutory carve-out for recording on-duty police in public applies regardless of whether the encounter occurs in a private or public place.

Imagine you’re a streamer filming your walk through Waikiki. You’re chatting with your friend about your plans while walking down Kalakaua Avenue. Your mic picks up your conversation, and you’re live on Twitch. Since you’re part of the conversation, you’re allowed to record it under Hawaii’s one-party consent rule. Later, you stop near a food truck and see a police officer writing a ticket. You start filming the interaction from a safe distance, narrating what you see. Hawaii law protects your right to record the officer as long as you don’t interfere. The Hawai‘i Supreme Court has recognized that filming government officials, including police officers performing official duties in a public place, is constitutionally protected under the First Amendment and article I, section 4 of the Hawai‘i Constitution. But if you walk into a restaurant’s back office to ask about a private matter and secretly record the staff arguing, you could be breaking the law because that back office is likely a private place where people expect privacy.

Breaking Hawaii’s wiretapping law can be a Class C felony, and violating the privacy law in a private place is a misdemeanor. You could also face a civil lawsuit for damages. Under the wiretapping statute, a person who unlawfully intercepts a communication may be liable for actual damages sustained plus reasonable attorneys’ fees, or statutory damages of the greater of $100 per day of violation or $10,000. The privacy statute provides its own civil remedy for violations in a private place. So even if you think you’re in the clear, the other person could still take you to court.