Bill to ease wiretaps advances

By Gordon Y.K. Pang
Advertiser Capitol Bureau

A bill making it easier for law enforcement officials to use wiretaps to obtain information against suspected criminals advanced out of the House Judiciary Committee yesterday, putting it in line to move out of the Legislature and become law.

The Office of the Attorney General and city prosecutors have pushed for the bill, arguing that the state's existing wiretapping law is antiquated and hampers law enforcement. But opponents worry that the bill would make it too easy to use wiretaps, which they describe as a troubling and unnecessary intrusion on privacy.

Senate Bill 2447's key element would eliminate the requirement that a request for a telephone or other electronic wiretap warrant first go through an "adversary" court hearing. At such a hearing, a court-appointed attorney represents the public's privacy interests in opposing the wiretap.

Law enforcement officials believe that information exposed during the hearing could compromise an investigation, and possibly even endanger law enforcement officers and civilian witnesses. As a result, they argue, wiretapping has rarely been used on a local level. They also note that adversary court hearings are not required for a federal wiretap.

Deputy Prosecutor Thomas Koenig, who is assigned to the joint High Intensity Drug Trafficking Area task force, testified yesterday that requests for electronic surveillance would still need to be subject to approval by a judge who must find probable cause and also determine that other investigative procedures have failed or would likely fail.

Opponents of the bill, however, say the adversary hearing guards against "rubber stamping" of wiretaps by judges and that eliminating it would give government unchecked authorization that could lead to abuses.

State Public Defender Jack Tonaki said an adversary hearing is "an extremely critical step in the present statutory process to ensure that interception into what may be the most private places and communications of an individual is not unnecessarily violated or compromised."

The latest draft of the bill deletes a section that would allow law enforcement officers to conduct "emergency" wiretapping that would be approved after the fact by judges. Honolulu prosecutors argued unsuccessfully that they would use the provision only under "extreme and serious instances where lives are at stake and time is of the essence," and that subsequent disapproval of the surveillance would bar its use as evidence.

The latest draft kept intact a provision that lowers the existing standard for approval of the use of "pen registers," devices which record or decode the identities of numbers dialed from a telephone line.

Reach Gordon Y.K. Pang at gpang@honoluluadvertiser.com or 525-8070.