As electronic forms of communication grow, Hawaii lawmakers join other state legislatures in struggling to determine what should be prosecuted as criminal conduct and what constitutes invasion of privacy. Legislators should look to other states and federal law on a yearly, or more-vigilant, basis to keep up with the growth of cyber shenanigans and setting appropriate limits.
Hawaii’s Legislature extended the crime of harassment to modern-day tools several years ago and is only now considering inclusion of other misbehavior via cellphones or the Internet with the old-fashioned offenses of stalking or bullying. Many other states already have made changes aimed at keeping up with modern communication.
Hawaii Attorney General David M. Louie has presented testimony that his office is reviewing such laws in other states to determine the language that would serve a bill’s purpose of protecting children. However, where differences between cyber crimes and ordinary crimes exist, they need to be recognized.
"While some individuals use the Internet to harm other people, others use the Internet to play practical jokes on one another," state Chief Public Defender Timothy Ho testified this month to a House committee. "There is a fine line between a practical joke and harassment."
Should it be harassment or cyberbullying, Ho asked, if someone posted a funny video on Facebook or YouTube at a school eating contest, causing one of the contestants to be embarrassed or humiliated? The relatively clear threshold, as it is in other legal situations, would be in the accused’s intention beyond a reasonable doubt.
More complicated, though, are practices of retaining cyber records to track down those who have committed crimes. One bill before the Legislature would allow electronic communication service providers to voluntarily disclose information to law enforcement officials during emergencies.
Hawaii’s chapter of the American Civil Liberties Union rightly asks that the bill make clear that law enforcement agencies must obtain probable-cause warrants to seek cellphone locations except in emergencies.
Another bill would allow judges to demand electronic records in criminal cases, including companies operating outside Hawaii, even though cellphone and Internet service providers are not required to retain such records. Legislators should abide by a request by the state Judiciary to table the bill until a study can be made.
Increasingly, the Internet and cellphones are loaded with personal data, sharing names, addresses, phone numbers, even a person’s instant location, which helps companies direct advertising to individuals.
As electronic communication leaps at greater speeds, the issue of privacy grows. The U.S. Supreme Court ruled last month that police officers violated the Constitution when they installed a Global Positioning System tracking device on a suspect’s car to monitor its whereabouts. That court decision no doubt will be cited in future cases where authorities use the new technology to seek private information.
State and federal laws will need changing to recognize, let alone to get ahead of, that fast-growing reality.
