ANOTHER SIDE OF THE STORY

Hawaii's Wiretap Law Endangers Police And Aids Criminals

Star-Bulletin columnist Rob Perez wrote in his column last Sunday 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 editorial strongly favoring amending Hawaii's electronic
surveillance law.

Hawaii's law requires an adversary hearing before electronic surveillance can
be used. In contrast, no 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 Montana attorney general's office wrote that efforts to combat
methamphetamine in Montana "would be devastated" if they had our statute.

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.