Rob Perez writes in his Aug. 10, 2003, column [in the ”’Honolulu Star-Bulletin”’] that the Legislature decided not to amend Hawaii’s wiretap law because it was “rightly concerned about eroding people’s privacy rights.” Perez advocates for not “abandon[ing] the current requirement for an adversarial court hearing before authorities can obtain a judge’s approval to electronically eavesdrop on a suspect’s private conversations.” Perez quotes others saying that the police and prosecutors want to have their ability to get wiretap requests “rubber stamped” by a court.
Police and prosecutors do not wish to have our 1978 electronic surveillance law amended so that judges will rubber stamp applications, and we do not wish to have the law amended to erode civil rights — we wish to have the law amended to give Hawaii the same crime fighting tool that federal and state law enforcement officers have throughout the country. The criminals and the ice dealers have brought crime into the 21st Century, and it makes no sense to hamstring Hawaii’s law enforcement with a law that made no sense even in the last century. Indeed, the Star-Bulletin had it exactly right in its Jan. 11, 2003, editorial strongly favoring amending Hawaii’s electronic surveillance law.
Hawaii’s law imposes a requirement of an adversary hearing before electronic surveillance can be used. In contrast, no such hearing is required to obtain a warrant to search someone’s person, home, and possessions, including a computer. An adversary hearing requirement is wholly unnecessary because we rely on our judges to make certain that applications for warrants are based upon probable cause. And, in the case of our proposed wiretap law, if law enforcement errs, and a judge nonetheless authorizes a wiretap order, any evidence obtained will not be usable in court. Moreover, our proposed wiretap law contains severe sanctions for police officers who intentionally misuse wiretaps. Prohibited interception and disclosure of wire, oral, or electronic communications would be a Class C felony punishable by as much as five years imprisonment.
Cases involving wiretaps involve the most serious types of crimes, and the most confidential investigations. An adversary hearing renders our law unusable, because of the unacceptable risk these hearings pose to the safety of law enforcement officers, undercover agents, and informants, and the threat they pose to compromise investigations. Denying Hawaii’s law enforcement a vital tool that virtually every other state utilizes does not protect the civil rights of our citizens, it erodes their civil rights, because it gives criminals and drug dealers a license in Hawaii that they have virtually nowhere else.
In this regard, the people of Hawaii and our legislators do not simply have to take the word of Hawaii law enforcement officials. Attorneys general, prosecutors, and police throughout the country believe our wiretap law inappropriately hinders law enforcement, and is unusable. The Attorney General of California wrote me that if “California were to have a requirement similar [to Hawaii’s], the important law enforcement tool of electronic surveillance would rarely, if ever be used. Such a result would endanger the lives of law enforcement and citizens of California.” The South Dakota Attorney General wrote that our law “presents an enormous risk to undercover agents, confidential informants, and other investigating officers. Why? In this type of investigation, secrecy is the only key to success, and to safety.” The Utah Attorney General wrote that “Hawaii’s electronic surveillance law creates an unacceptable risk to critical investigations and to investigators’ lives.” The New Hampshire Attorney General wrote that if he had to contend with Hawaii’s law, “the impact would be debilitating.” The Wyoming Attorney General wrote that this “type of law would certainly hamstring pursuit of Wyoming’s largest [drug] dealers … .” The Nebraska Attorney General wrote that the law “is inconceivable to me [and if] we had a similar provision, it would eliminate the use of this very vital tool in drug investigations.” The Montana Attorney General’s office wrote that their efforts to combat methamphetamine in Montana “would be devastated” if they had our statute. And, the Attorney General of Vermont noted that this law could have the result of compromising the integrity of criminal investigations, and were the statute in effect in Vermont, “it would act as a barrier to effective and efficient law enforcement.”
Hawaii’s law enforcement community will provide the Legislature next session with scores of additional comments. The bottom line, however, is that our law impedes law enforcement, benefits criminals, provides no tangible benefit to Hawaii’s citizens, and does not further civil liberties. It should be amended.
”’Mark J. Bennett is the attorney general of Hawaii.”’