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Question: camera in elevator
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Aloha Ken,
Your opinion or guidance re pinhole (covert) CCTV cameras in residential elevator cabs in Hawaii-I have reviewed HRS 711-1111 numerous times and have concerns that one may have an expectation of privacy in an elevator cab, and have not found case law. The system will be both monitored and recorded.
All other premises CCTV cameras planned for this project are overt.
Mahalo,
Spike Denis
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Answer
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Thanks for alerting me to the new statute. I've updated our website with the new Hawaii statute. You can read it here: https://www.kirschenbaumesq.com/page/alarm-law-issues
I had one of my associates research the question of cameras in elevators in Hawaii specifically. Here is her report:
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Memorandum
To: Ken Kirschenbaum,Esq
From: Nicoletta Lakatos,Esq
Re: Installation of pinhole (covert) cameras & reasonable expectation of privacy – Hawaii
Although Hawaii has strict violation of privacy laws, the provisions of HRS § 711-1111are generally limited to installation and surveillance in a ‘private place’, without the consent of individuals.
Section 711-1111(1)(d) states:
“A person commits the offense of violation of privacy in the second degree if, except in the execution of a public duty or as authorized by law, the person intentionally:
(d) installs or uses, or both, in any private place, without consent of the person or persons entitled to privacy therein, any means or device for observing, recording, amplifying, or broadcasting sounds or events in that place other than another person in a stage of undress or sexual activity;”
Section 711-1111(1)(d) was amended in 2012 from “…observing…. sounds or events in that place including another person in a stage of undress…” to “observing… sounds or events in that place other than another person in a stage of undress…”. This change was a reversion to the Statute’s original reading of subsection (1)(d) which was only briefly changed to “including” between 2006 and 2012. The change is essentially inconsequential for the purposes of this memo.
For our purposes, subsection (1)(d) criminalizes the installation of recording devices in a private place, without the consent of persons who are entitled to privacy in such a place.
Although ‘private place’ is not defined, “public place” is defined as:
“an area generally open to the public, regardless of whether it is privately owned, and includes but is not limited to streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, buses, tunnels, buildings, stores, and restaurants.”
These sections haven’t been considered by the courts, but based on the definition of “public place,” an elevator in a privately owned residential apartment building can be defined as a public place where a person should not have a reasonable expectation of privacy. It is a common area, to which everyone in a building has access.
However, an elevator in a private residential home would not fall under the definition of public place and would require the consent of all those who are entitled to privacy therein. If any monitoring or surveillance is to occur, the person installing the service should take care to advise all persons who would have a reasonable expectation of privacy in that space.
Because the courts have not considered these provisions, and even though the statute does not appear to require it, it may also be prudent to include an advisory in a residential apartment building elevator.
Finally, subsection (2) of HRS § 711-1111 states:
“the section shall not apply to any dissemination, distribution, or transfer, of images subject to this section by an electronic communication service provider or remote storage service in the ordinary course of business.”
“Electronic communication service” is defined as:
“any service that provides to users thereof the ability to send or receive wire or electronic communications.”
An “electronic communication” means:
“any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system.”
An “electronic communication service provider” means:
“any person engaged in the offering or sale of electronic communication services to the public.”
Based on subsection (2), as long as you are installing in a public place or have the consent of persons, the section will not apply to the transfer of electronic communications, which occur in the regular course of business.
Finally, it is interesting to note that scholarly articles considering HRS § 711-1111 and specifically subsection (1)(d) focus on the section’s applicability to wire-tapping , since the Hawaiian wire tapping statute, HRS § 803-42(b)(3), adopted the wording of HRS § 711-1111 . The statute has otherwise rarely been considered.
Footnotes
1. Crossing Lenses: Policing's New Visibility And The Role Of "Smartphone Journalism" As A Form Of Freedom-Preserving Reciprocal Surveillance, 14 U. Ill. J.L. Tech. & Pol'y 59, and “Qualified Immunity and the First Amendment Right to Record Police,” 22 B.U. Pub. Int. L.J. 243.
2. State v. Lee, 67 Haw 307, 686 P2d 816 , at 313.
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