State v. Pacquing.

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Electronically Filed
Supreme Court
SCAP-14-0001205
09-DEC-2016
08:33 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellant/Cross-Appellee,
vs.
CHESTER PACQUING,
Petitioner/Defendant-Appellee/Cross-Appellant.
SCAP-14-0001205
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-14-0001205; CR. NO. 08-1-0556)
DECEMBER 9, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ., AND
CIRCUIT JUDGE NISHIMURA, IN PLACE OF WILSON, J., RECUSED
OPINION OF THE COURT BY POLLACK, J.
I. INTRODUCTION
The appeal and cross-appeal in this case primarily
involve the constitutionality of the statutes criminalizing the
unauthorized possession of confidential personal information
(UPCPI). Hawaii Revised Statutes (HRS) §§ 708-800, 708-839.55
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(Supp. 2006).1 Three issues are presented: (1) whether the
complaint in this case charging the UPCPI offense is legally
insufficient for not being readily comprehensible to persons of
common understanding, in violation of article I, section 14 of
the Hawai#i Constitution and the Sixth Amendment to the United
States Constitution; (2) whether the UPCPI statutes are
unconstitutionally overbroad; and (3) whether the UPCPI statutes
are unconstitutionally vague.
We hold that (1) the complaint is legally insufficient
and contrary to constitutional due process rights, (2) the UPCPI
statutes are not unconstitutionally overbroad, and (3) portions
of the UPCPI statutes are unconstitutionally vague, but they are
severable from the constitutional parts of the statutes.
II. BACKGROUND
On March 23, 2008, at about 11:00 p.m., Officer Barry
Danielson of the Honolulu Police Department (HPD), assisted by
Officer Daniel Lum, initiated a traffic stop of a black Acura
Integra with an expired tax emblem. Chester Pacquing, the
driver of the black Acura, was asked, but failed, to produce his
driver’s license, registration, and insurance papers. Pacquing
then identified himself as the complainant and provided the
1
HRS §§ 708-800 and 708-839.55 are hereinafter collectively
referred to as “UPCPI statutes.” When referring to a specific statute or its
sections or subsections, the exact designation (e.g., HRS § 708-839.55(a))
will be used.
2
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complainant’s residential address and date of birth. When the
officers called in the complainant’s name, residential address,
and date of birth to HPD dispatch, the physical description of
the complainant provided by HPD dispatch matched that of
Pacquing.
Thereafter, Officer Lum issued two citations to
Pacquing in the complainant’s name: a criminal citation for the
offense of Driving Without Insurance and a traffic infraction
for Delinquent Vehicle Tax and Fraudulent Safety Check. Officer
Lum indicated on the citations the complainant’s Hawai#i driver’s
license number and the last four digits of the complainant’s
social security number, and Pacquing signed the citations with
the complainant’s name.
After Pacquing was allowed to leave, Officer Lum
discovered that he did not give Pacquing a copy of one of the
traffic citations. Officer Lum went to the complainant’s
residential address to deliver the citation, and when the
complainant did not answer, Officer Lum left the citation in the
complainant’s mailbox. The complainant later discovered the
citation in his mailbox, and believing that the citation was
mistakenly issued in his name, he took it to the Kalihi Police
Station. The complainant explained that he had not been stopped
by the police at the date and time indicated on the citation and
that he did not own or operate a black Acura Integra. A police
3
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report was initiated, and Officer Lum was informed of the
complainant’s statement.
On April 7, 2008, Officer Danielson stopped the same
black Acura Integra, with Officer Lum assisting. Pacquing again
failed to provide picture identification. Officer Lum detained
Pacquing, the complainant was brought to the scene, and the
complainant identified Pacquing as his former neighbor.
Pacquing thereafter admitted his true identity and explained
that he used the complainant’s name and personal information
because there were outstanding warrants issued against him, and
he was scared of getting arrested.
On April 14, 2008, Pacquing was charged by complaint
with one count of UPCPI, in violation of HRS § 708-839.55.2 The
complaint stated as follows:
2
HRS § 708-839.55 provides as follows:
(1) A person commits the offense of unauthorized
possession of confidential personal information if that
person intentionally or knowingly possesses, without
authorization, any confidential personal information of
another in any form, including but not limited to mail,
physical documents, identification cards, or information
stored in digital form.
(2) It is an affirmative defense that the person who
possessed the confidential personal information of another
did so under the reasonable belief that the person in
possession was authorized by law or by the consent of the
other person to possess the confidential personal
information.
(3) Unauthorized possession of confidential personal
information is a class C felony.
HRS § 708-839.55 (Supp. 2006).
4
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On or about the 23rd day of March, 2008, to and including
the 7th day of April, 2008, in the City and County of
Honolulu, State of Hawaii, CHESTER PACQUING did
intentionally or knowingly possess, without authorization,
any confidential personal information of [the complainant]
in any form, including but not limited to mail, physical
documents, identification cards, or information stored in
digital form, thereby committing the offense of
Unauthorized Possession of Confidential Personal
Information, in violation of Section 708-839.55 of the
Hawaii Revised Statutes.
Pacquing moved to dismiss the complaint on the basis
of insufficient evidence and on the basis that it was a de
minimis violation of the UPCPI statutes. The circuit court
granted the motion in part, agreeing with Pacquing that his
actions constituted a de minimis violation of the UPCPI
statutes.3 The State appealed from the circuit court’s order to
the Intermediate Court of Appeals (ICA), which, in a memorandum
opinion, vacated the order and remanded the case for further
proceedings after concluding that Pacquing had failed to “place
all the relevant attendant circumstances before the trial
court.” State v. Pacquing, No. 29703 (App. Jan. 25, 2012)
(mem.), aff’d on other grounds, 129 Hawai#i 172, 297 P.3d 188(2013).
Pacquing applied for a writ of certiorari to this
court, which, in a published opinion filed on March 22, 2013,
affirmed the ICA’s judgment on other grounds and remanded the
case to the circuit court. State v. Pacquing, 129 Hawai#i 172,
3
The Honorable Michael A. Town presided.
5
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297 P.3d 188 (2013). This court determined that the circuit
court erred in concluding that the complaint should be dismissed
as a de minimis statutory violation and that the ICA erred in
allowing further proceedings on the de minimis motion. Id. at
183—87, 297 P.3d at 199—203.
On remand to the circuit court, Pacquing moved to
dismiss the complaint on the grounds that the UPCPI statutes are
unconstitutionally vague and overbroad under the Due Process
Clauses of the federal and state constitutions. On the same
day, Pacquing filed a separate dismissal motion, alleging that
the complaint failed to provide him fair notice of the nature
and cause of the accusation. The State opposed both dismissal
motions.
After conducting hearings on the dismissal motions,
the circuit court dismissed the case on the ground that the
complaint is fatally defective (Order Dismissing Complaint).4
The circuit court reasoned that the statutory term “confidential
personal information” is not readily comprehensible to persons
of common understanding and that the State’s failure to define
that phrase in the complaint denied Pacquing of his right to be
fully informed of the nature and cause of the accusation against
him.
4
The Honorable Paul B.K. Wong presided.
6
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As to the constitutional challenges to the UPCPI
statutes, the circuit court concluded that the statutes are not
void for vagueness because they are sufficiently specific to
give a person of ordinary intelligence a reasonable opportunity
to know what conduct is prohibited and provide explicit
standards to avoid arbitrary and discriminatory enforcement.
However, the circuit court found that the UPCPI statutes are
overbroad because they impact the fundamental rights of
expression and of the press as protected by the First Amendment
to the U.S. Constitution and by article I, section 4 of the
Hawai#i Constitution. The circuit court reasoned that the
State’s significant public interest in preventing identity theft
and the misuse of confidential personal information does not
justify the UPCPI statutes’ potentially sweeping restriction on
the exercise of the freedoms of speech and of the press. Thus,
the circuit court dismissed the complaint with prejudice on
overbreadth grounds (Order Invalidating the UPCPI Statutes).
The State moved for reconsideration of each of the two
orders, and the circuit court orally denied the motions.
Thereafter, the State filed a notice of appeal to the ICA,
appealing from the circuit court’s Order Dismissing Complaint,
Order Invalidating the UPCPI Statutes, and the oral decision
7
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denying reconsideration.5 On the same day, Pacquing filed a
notice of cross-appeal challenging the Order Invalidating the
UPCPI Statutes.6 Thereafter, Pacquing filed an application for
transfer, which this court granted.
III. STANDARDS OF REVIEW
“The constitutionality of a statute is a question of
law which is reviewable under the right/wrong standard.” State
v. Alangcas, 134 Hawai#i 515, 524, 345 P.3d 181, 190 (2015)
(quoting State v. Gaylord, 78 Hawai#i 127, 137, 890 P.2d 1167,
1177 (1995)). It is well established that “the standard for
demonstrating that a statute is contrary to our constitution
remains high: ‘Every enactment of the Hawai#i Legislature is
presumptively constitutional, and the party challenging a
statute has the burden of showing the alleged
unconstitutionality beyond a reasonable doubt.’” Id. at 531,
345 P.3d at 197 (quoting State v. Bui, 104 Hawai#i 462, 466, 92
P.3d 471, 475 (2004)).
5
The circuit court subsequently filed its written orders denying
the State’s motions for reconsideration. On appeal, the State makes no
discernible argument as to the impropriety of the circuit court’s denial of
its motions for reconsideration. In any event, this court’s resolution of
the issues involved in this case encompasses the matters raised in the
State’s motions for reconsideration.
6
Pacquing also cross-appealed from the Order Dismissing Complaint,
but the arguments in his appellate briefs only relate to the Order
Invalidating the UPCPI Statutes.
8
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Whether a charge sufficiently sets forth all the
elements of the offense is also a question of law reviewed on
appeal under the right/wrong standard. State v. Wheeler, 121
Hawai#i 383, 390, 219 P.3d 1170, 1177 (2009).
IV. DISCUSSION
In its appeal, the State maintains that the circuit
court erred in concluding (1) that the term “confidential
personal information” is not readily comprehensible to persons
of common understanding; (2) that the defect in the complaint
deprived the circuit court of subject-matter jurisdiction; and
(3) that the UPCPI statutes are unconstitutionally overbroad.
In his cross-appeal, Pacquing asserts that the circuit court
erred in concluding that the UPCPI statutes are not
unconstitutionally vague.7
A. Sufficiency of the Charge and Due Process
The State contends in its appellate briefs that the
complaint against Pacquing is readily comprehensible to persons
of common understanding and that the circuit court erred in
concluding that the complaint did not provide Pacquing with fair
notice of the accusations against him in violation of article I,
7
Pacquing also contends that the district court erred in failing
to find that HRS § 708-839.55(2) (Supp. 2013) violates defendants’ federal
and state constitutional rights to due process because it places the burden
of persuasion on defendants with regard to essential elements of UPCPI. This
issue was not raised in the circuit court, and in light of our disposition of
this case, it would be premature for this court to address this issue.
9
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section 14 of the Hawai#i Constitution and the Sixth Amendment to
the U.S. Constitution. However, the State at oral argument
conceded that the complaint is defective because it did not
include the statutory definition of “confidential personal
information” and that, therefore, the complaint did not fairly
apprise persons of common understanding of what they must defend
against.8 Oral Argument at 23:40—24:22, State v. Pacquing, SCAP-
XX-XXXXXXX, http://oaoa.hawaii.gov/jud/oa/16/SCOA_021816_14_
1205.mp3.
We agree with the State’s concession. “Article 1,
section 14 of the Hawai#i Constitution and the Sixth Amendment to
the United States Constitution require that ‘[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
informed of the nature and cause of the accusation[.]’” State
v. Wells, 78 Hawai#i 373, 379, 894 P.2d 70, 76 (1995)
(alterations in original). Generally, “[w]here the statute sets
forth with reasonable clarity all essential elements of the
crime intended to be punished, and fully defines the offense in
unmistakable terms readily comprehensible to persons of common
understanding, a charge drawn in the language of the statute is
sufficient.” State v. Wheeler, 121 Hawai#i 383, 393, 219 P.3d
8The State represented that its current practice is to include the
statutory definition of “confidential personal information” when charging a
person with UPCPI, see Oral Argument at 23:40—24:22.
10
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1170, 1180 (2009) (alteration in original) (quoting State v.
Jendrusch, 58 Haw. 279, 282, 567 P.2d 1242, 1245 (1977)). Here,
because the statutory definition of “confidential personal
information” “does not comport with its commonly understood
definition,” it is “neither ‘unmistakable’ nor ‘readily
comprehensible to persons of common understanding.’” Wheeler,
121 Hawai#i at 394, 219 P.3d at 1181 (quoting State v. Merino, 81
Hawai#i 198, 214, 915 P.2d 672, 688 (1996)). A person of
ordinary intelligence would reasonably construe the phrase
“confidential personal information” as secret or private
knowledge belonging or relating to a particular person or
designed for use by that person.9 On the other hand, the
statutory definition of “confidential personal information”
provides as follows:
information in which an individual has a significant
privacy interest, including but not limited to a driver’s
license number, a social security number, an identifying
number of a depository account, a bank account number, a
password or other information that is used for accessing
information, or any other name, number, or code that is
used, alone or in conjunction with other information, to
confirm the identity of a person.
HRS § 708-800 (Supp. 2006). Thus, under the statute, only
“information in which an individual has a significant privacy
interest,” including and as exemplified by the list provided in
HRS § 708-800, qualifies as “confidential personal information”
9
See Confidential, Webster’s Third New International Dictionary
(1993); Personal, Webster’s, supra; Information, Webster’s, supra.
11
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for the purposes of the UPCPI offense. As such, the common
signification of “confidential personal information” does not
convey the extent or limits of the statutory definition.
Hence, simply stating the phrase “confidential
personal information” in the complaint against Pacquing did not
sufficiently apprise him “of what he . . . must be prepared to
meet.” Wells, 78 Hawai#i at 379—80, 894 P.2d at 76—77 (quoting
State v. Israel, 78 Hawai#i 66, 69, 890 P.2d 303, 306 (1995)).
The State should have included in the charge the statutory
definition of “confidential personal information” under HRS §
708-800 or at least specified in the charge the items of
information that allegedly were unlawfully possessed.
Accordingly, the circuit court did not err in concluding that
the term “confidential personal information” is not readily
comprehensible to persons of common understanding and that,
therefore, the complaint is legally insufficient under article
I, section 14 of the Hawai#i Constitution and the Sixth Amendment
to the U.S. Constitution. Because the complaint against
Pacquing is legally insufficient, it is dismissed without
prejudice. See Wheeler, 121 Hawai#i at 386, 219 P.3d at 1173(affirming the ICA’s dismissal without prejudice of an
12
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insufficient oral charge alleging the offense of Operating a
Vehicle Under the Influence of an Intoxicant).10
B. Overbreadth
The State challenges the circuit court’s conclusion
that the UPCPI statutes are overbroad because they impact the
fundamental rights of expression and the press as guaranteed by
the First Amendment to the U.S. Constitution and by article I,
section 4 of the Hawai#i Constitution. According to the State,
the possibility that the UPCPI statutes may cause a chilling
effect on the freedom of speech and of the press does not render
the UPCPI statutes overbroad because their “legitimate reach . .
. dwarf[] any possible impermissible applications.”
“Overbreadth analysis addresses laws that, if
enforced, would allow the prosecution of constitutionally-
protected conduct.” State v. Alangcas, 134 Hawai#i 515, 527, 345
10
The State additionally argues that the circuit court erred in
concluding that the failure to sufficiently state an offense in the complaint
against Pacquing deprived the court of subject-matter jurisdiction. The
Order Dismissing Complaint could be read as based on a conclusion that the
circuit court lacked subject-matter jurisdiction because of its reliance on
portions of State v. Cummings that have since been overruled by this court.
101 Hawai#i 139, 63 P.3d 1109 (2003), overruled in part, Schwartz v. State,
136 Hawai#i 258, 361 P.3d 1161 (2015).
In Schwartz, this court concluded that although a charging
instrument that fails to allege an element of an offense “may result in a
significant violation of due process, [it] does not abrogate the jurisdiction
of the court, which is established by statute and invoked by a charge of a
cognizable offense prescribed by law.” 136 Hawai#i at 272, 361 P.3d at 1175.
Therefore, the circuit court erred to the extent it concluded that the
omission of the definition of “confidential personal information” in the
complaint deprived it of subject-matter jurisdiction.
13
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P.3d 181, 193 (2015) (citing Andrew E. Goldsmith, The Void–for–
Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J.
Crim. L. 279, 284 n.39 (2003)). An overbreadth challenge is
typically available only to individuals who “assert that [their]
constitutionally protected conduct is being prosecuted by the
State.” Id. In instances where it is contended that the
challenged statute affects constitutionally protected freedom of
expression or “reaches a substantial amount of constitutionally
protected conduct,” then an individual may initiate a facial
challenge to the statute as overbroad on these grounds. Id. at
528, 345 P.3d at 194 (quoting Vill. of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982)).
Pacquing does not argue that the UPCPI statutes are
punishing him for conduct that is constitutionally protected.
He contends only that “[b]ecause the creation, possession, and
dissemination of information is speech for First Amendment
purposes, HRS § 708-839.55 impacts First Amendment rights of
expression,” and he “may challenge the statute on the grounds
that it may be unconstitutionally applied in circumstances that
are not presented in the instant case.” The essence of
Pacquing’s argument is that the way in which the UPCPI statutes
are written “would effectively function as a prior restraint on
the press and the public to prevent them from ever publishing or
obtaining any confidential personal information without the
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authorization of the individual to whom that information
refers.” Thus, Pacquing’s contention is a facial challenge to
the UPCPI statutes as overbroad.
The starting point for overbreadth analysis is the
determination, through statutory construction, of the meaning
and scope of the challenged statute in order to ascertain
“whether the enactment reaches a substantial amount of
constitutionally protected conduct.” Alangcas, 134 Hawai#i at
525, 345 P.3d at 191 (quoting State v. Beltran, 116 Hawai#i 146,
152, 172 P.3d 458, 464 (2007)); see United States v. Williams,
553 U.S. 285, 293 (2008) (“[I]t is impossible to determine
whether a statute reaches too far without first knowing what the
statute covers.”). This threshold inquiry focuses on an
evaluation of “the ambiguous as well as the unambiguous scope of
the enactment.” Alangcas, 134 Hawai#i at 525, 345 P.3d at 191
(emphasis omitted) (quoting Vill. of Hoffman Estates, 455 U.S.
at 494 n.6). If the court concludes that the law does not reach
a substantial amount of constitutionally protected conduct, then
the overbreadth challenge must fail. Id. (quoting Vill. of
Hoffman Estates, 455 U.S. at 494). When confronted by “a
provision of broad or apparent unrestricted scope, courts will
strive to focus the scope of the provision to a narrow and more
restricted construction,” id. at 524—25, 345 P.3d at 190—91
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(quoting State v. Gaylord, 78 Hawai#i 127, 138, 890 P.2d 1167,
1178 (1995)), in order “to preserve its constitutionality,” id.
1. Scope of Prohibited Conduct
It is well established that statutory construction in
our jurisdiction starts with an examination of the plain
language in order to determine and give effect to the
legislative intent and purpose underlying the statute. Flores
v. Rawlings Co., 117 Hawai#i 153, 158, 177 P.3d 341, 346 (2008),
amended on reconsideration, 119 Hawai#i 287, 196 P.3d 289 (2008);
State v. McKnight, 131 Hawai#i 379, 388, 319 P .3d 298, 307
(2013).
HRS § 708-839.55 states, in pertinent part, as
follows: “A person commits the offense of unauthorized
possession of confidential personal information if that person
intentionally or knowingly possesses, without authorization, any
confidential personal information of another in any form,
including but not limited to mail, physical documents,
identification cards, or information stored in digital form.”
HRS § 708-839.55 (Supp. 2013).
As stated, “confidential personal information” is
defined in HRS § 708-800 as
information in which an individual has a significant
privacy interest, including but not limited to a driver’s
license number, a social security number, an identifying
number of a depository account, a bank account number, a
password or other information that is used for accessing
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information, or any other name, number, or code that is
used, alone or in conjunction with other information, to
confirm the identity of a person.
HRS § 708-800 (Supp. 2006).
Based on a plain-language reading of HRS § 708-839.55
and HRS § 708-800, the felony offense of UPCPI requires the
satisfaction of three elements: the person must (1)
intentionally or knowingly possess, (2) without authorization,
(3) any information, in any form, in which an individual has a
significant privacy interest, including the following: a
driver’s license number, a social security number, an
identifying number of a depository account, a bank account
number, a password or other information that is used for
accessing information, or any other name, number, or code that
is used, alone or in conjunction with other information, to
confirm the identity of a person.11
11
Apparently, because of the expansiveness of the definition of
confidential personal information, the State asserts that it should be read
as “information in which an individual has a significant privacy interest . .
. that is used for accessing information, or . . . to confirm the identity of
a person.” This editing of HRS § 708-800 is unavailing because the first
clause of the definition--“information in which an individual has a
significant privacy interest”--is not modified by the phrase “that is used
for accessing information” or by the phrase “to confirm the identity of a
person.” These phrases act as modifiers of other clauses in the statute. In
addition, these phrases appear after the word “including” and are merely non-
exhaustive examples provided by the legislature of what constitutes
“information in which an individual has a significant privacy interest.” See
infra. Thus, the State’s proffered reading of HRS § 708-800 does not comport
with the syntax and structure of the statute’s plain language, and it
redefines the statute’s meaning.
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2. The UPCPI Statutes are Not Facially Overbroad
The First Amendment to the United States Constitution
and article I, section 4 of the Hawai#i Constitution proscribes
the enactment of any law that abridges the freedom of speech.12
The crux of Pacquing’s argument is that the UPCPI statutes sweep
within its purview--and, hence, allow the prosecution of--a
member of the press who lawfully obtains and thereafter
possesses materials deemed “confidential personal information”
when the publication of these materials is constitutionally
protected.13
The United States Supreme Court, in a string of cases,
has held that a state may not punish the publication of lawfully
obtained, truthful information “absent a need to further a state
12
The U.S. Constitution provides that “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a
redress of grievances.” U.S. Const. amend. I.
The Hawai#i Constitution provides as follows: “No law shall be
enacted respecting an establishment of religion, or prohibiting the free
exercise thereof, or abridging the freedom of speech or of the press or the
right of the people peaceably to assemble and to petition the government for
a redress of grievances.” Haw. Const. art. I, § 4.
13
Pacquing points to recent events in which journalists, academics,
and other individuals came into possession of information inadvertently
leaked or otherwise hacked from private servers. One example that Pacquing
provides is the recent Sony hack in which Sony’s internal documents--
including spreadsheets listing the names, birth dates, and social security
numbers of Sony employees--were publicly distributed. According to Pacquing,
in such an event, the individuals, including members of the media, who
possessed the leaked data containing confidential personal information could
be prosecuted for mere possession of the data regardless of their intent or
purpose, which “would have a profound chilling effect on the media’s
reporting on the leaks.”
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interest of the highest order.” Smith v. Daily Mail Pub. Co.,
443 U.S. 97, 103—04 (1979). In Landmark Communications, Inc. v.
Virginia, 435 U.S. 829 (1978), the Court stated that Virginia
could not criminally punish third persons, including members of
the press, for publishing truthful information divulged to them
regarding confidential proceedings of the Virginia Judicial
Inquiry and Review Commission. Id. at 838.
In Daily Mail, the Court reiterated “that state action
to punish the publication of truthful information seldom can
satisfy constitutional standards.” In that case, newspapers
published articles containing the name of a juvenile offender
accused of killing a classmate. Daily Mail Pub. Co., 443 U.S.
at 99. The newspapers sent personnel to the scene and, in the
process, obtained the name of the juvenile from “various
witnesses, the police, and an assistant prosecuting attorney.”
Id. Articles were then published, some of which contained the
name of the juvenile offender. Id. at 99—100. A West Virginia
penal statute prohibited newspapers from publishing names of
juvenile offenders without prior approval by the juvenile court.
Id. at 98—99. The Court held that when newspapers lawfully
obtain information, such as through reliance upon “routine
newspaper reporting techniques,” the state may not punish the
publication of that information unless in furtherance of a
substantial interest not present in that case. Id. at 103—04.
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In Florida Star v. B.J.F., the newspaper published the
name of an alleged sexual assault victim copied from a police
report made available by the police department to the press.
491 U.S. 524, 527—28 (1989). A Florida statute made it unlawful
to publish the names of victims of sexual assault. Id. at 526.
The sexual assault victim commenced a civil suit against the
newspaper that published her name and was subsequently awarded
damages. Id. at 528—29. The Supreme Court reversed, reasoning
as follows: the newspaper lawfully obtained and published
truthful information; it is questionable whether the
governmental interests14 advanced in the case were served by the
statute prohibiting the publication of the names of sexual
assault victims; the state statute proscribing the publication
of the names of sexual assault victims was not narrowly tailored
to serve the proffered governmental interests; and if the media
were allowed to be punished by the state statute under the facts
of the case, self-censorship and press timidity would ensue.
Id. at 538—41.
The question of whether the First Amendment affords
any degree of protection to one’s publication of information
14
The following governmental interests were considered in Florida
Star: “the physical safety of such victims, who may be targeted for
retaliation if their names become known to their assailants; and the goal of
encouraging victims of such crimes to report these offenses without fear of
exposure.” Florida Star, 491 U.S. at 537.
20
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illegally intercepted by someone else was answered by the
Supreme Court in Bartnicki v. Vopper, 532 U.S. 514 (2001). In
that case, an unknown party intercepted and recorded a phone
conversation between two high-ranking officials of a union that
represented teachers in collective-bargaining negotiations with
a Pennsylvania school board. Bartnicki, 532 U.S. at 518. The
phone conversation was then delivered to a local radio
commentator, who proceeded to play the recording on his public
affairs talk show. Id. at 519. The union officials thereafter
sued, under both Pennsylvania and federal wiretapping laws, the
radio commentator and other members of the media that published
the contents of the intercepted phone conversation. Id. at 520.
The Court held that the governmental “interest in removing an
incentive for parties to intercept private conversations, and .
. . the interest in minimizing the harm to persons whose
conversations have been illegally intercepted,” fell short of
justifying the restrictions on speech effectuated by the
punishment of a person who publishes truthful information of
public interest that was initially obtained by another through
illegal means. Id. at 529—35.
It bears repeating here that the UPCPI statutes
prohibit the intentional or knowing possession, without
authorization, of “any confidential personal information of
another in any form, including but not limited to mail, physical
21
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documents, identification cards, or information stored in
digital form.” HRS § 708-839.55(1). Although one can argue, as
Pacquing does, that the UPCPI statutes would criminalize a press
member’s possession of confidential personal information that
the Hawai#i and U.S. Constitutions protect, we do not interpret
the UPCPI statutes to sweep that far.
As noted, in order to “accord a constitutional
interpretation of a provision of broad or apparent unrestricted
scope, courts will strive to focus the scope of the provision to
a narrow and more restricted construction.” State v. Taylor, 49
Haw. 624, 634—35, 425 P.2d 1014, 1021 (1967) (quoting Territory
v. Wong, 40 Haw. 257, 259—60 (Haw. Terr. 1953)). One of the
elements of the UPCPI offense is that the possession must be
“without authorization.” HRS § 708-839.55(a). “Authorization”
is not defined by Chapter 708 of the HRS, but “this court may
resort to legal or other well accepted dictionaries as one way
to determine the ordinary meaning of certain terms not
statutorily defined.” State v. Guyton, 135 Hawai#i 372, 378, 351
P.3d 1138, 1144 (2015) (quoting State v. Pali, 129 Hawai#i 363,
370, 300 P.3d 1022, 1029 (2013)).
Black’s Law Dictionary defines “authorization” as
“[o]fficial permission to do something; sanction or warrant.”
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Authorization, Black’s Law Dictionary (10th ed. 2014).15 The
meaning of “authorize” provided by Black’s is “[t]o give legal
authority; to empower.”16 Hence, “without authorization” in HRS
§ 708-839.55(a) means without legal authority, official
permission, or sanction. The plain meaning of “authorization”
does not require that the authorization be issued by the person
to whom the confidential personal information relates or by
someone who has control over the confidential personal
information.17
Because a member of the press who lawfully obtains,
possesses, and thereafter publishes truthful information may not
be punished for doing so under U.S. Supreme Court precedents, it
15
Oxford Dictionaries defines “authorization” as “[t]he action or
fact of authorizing or being authorized.” Authorization,
http://www.oxforddictionaries.com/us/definition/american_english/authorizatio
n (last visited Nov. 7, 2016).
Merriam-Webster defines “authorization” as “the act of
authorizing.” Authorization, http://www.merriam-
webster.com/dictionary/authorization (last visited Nov. 7, 2016).
16
Oxford Dictionaries’ definition of “authorize” is to “[g]ive
official permission for or approval to (an undertaking or agent).”
Authorize, http://www.oxforddictionaries.com/us/definition/
american_english/authorize#authorize__2 (last visited Nov. 7, 2016).
Merriam-Webster’s definition of “authorize” is “to give power or
permission to (someone or something)” or “to give legal or official approval
to or for (something).” Authorize, http://www.merriam-
webster.com/dictionary/authorizing (last visited Nov. 7, 2016).
17
If the legislature intended otherwise, it could have restricted
the source of “authorization” to the “owner” of confidential personal
information. For example, the legislature’s definition of “unauthorized
control over property” clearly states that it “means control over property of
another which is not authorized by the owner.” HRS § 708-800 (Supp. 2006)
(emphasis added).
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follows that the possession by the press of “confidential
personal information” is constitutionally sanctioned. Hence, in
cases where the press obtains “confidential personal
information” from a third party, see Landmark Commc’ns, 435 U.S.
829--even if that third party itself obtained the information
illegally, see Bartnicki, 532 U.S. 514--or through routine
newspaper reporting techniques, see Daily Mail Pub. Co., 443
U.S. at 103—04; Florida Star, 491 U.S. 524, the possession of
the confidential personal information is with authorization and
falls beyond the reach of the UPCPI statutes.18
This interpretation of “without authorization” is
amply supported by the legislative history of the UPCPI
statutes. The ultimate purpose underlying the enactment of the
UPCPI statutes was “to deter identity theft” in the long-run and
“to ‘fill a loophole’ and increase criminal penalties for
conduct that would otherwise constitute a misdemeanor” in the
short run. State v. Pacquing, 129 Hawai#i 172, 182, 297 P.3d
188, 198 (2013) (quoting S. Stand Comm. Rep. No. 2508, in 2006
Senate Journal, at 1248—49). These purposes are not served by
18
There are other instances in which possession of confidential
personal information is legally authorized, officially permitted, or
sanctioned such that the conduct would be beyond the reach of the UPCPI
statutes. For example, when government employees and administrative agencies
possess a person’s social security number in the course of conducting
official government businesses, or when a Hawai#i Department of Motor Vehicle
(DMV) employee comes into possession of another person’s driver’s license
number, there is little doubt that the employees’ or agencies’ possession is
legally authorized and officially permitted.
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punishing the press for conduct deemed to be constitutionally
protected by the Supreme Court, nor does the legislative history
indicate any intent to criminalize such conduct by the press.
Interpreting the UPCPI statutes to exclude from their
scope constitutionally protected speech rights of the press is
consistent with this court’s approach to statutory
interpretation illustrated in State v. Manzo, 58 Haw. 440, 573
P.2d 945 (1977). In that case, the defendant was charged with
the offense of promoting pornography, and he challenged the
constitutionality of the statute, arguing, as relevant here,
that the statute violated his speech rights under the First
Amendment to the U.S. Constitution and the corresponding
provision of the Hawai#i Constitution. Id. at 441, 443, 573 P.2d
at 947, 948. This court held that the Hawai#i Constitution
excludes obscenity from protected speech, and it construed the
statute’s definition of what is pornographic as incorporating
“those limitations . . . [that] the Supreme Court has prescribed
as requisite under the First Amendment.” Id. at 444, 573 P.2d
at 949. Thus, this court concluded that the statute
criminalizing the promotion of pornography was not
unconstitutionally overbroad. Id. at 454, 573 P.2d at 954.
An interpretation of “without authorization” that
would exclude from the application of the UPCPI statutes members
of the press whose possession and publication of information is
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constitutionally protected coincides with the approach taken in
Manzo. As in Manzo, this interpretation merely will conform the
UPCPI statutes to the limitations set by this court and the
Supreme Court to the manner in which the State may regulate
protected speech. Accordingly, the UPCPI statutes are not
facially and unconstitutionally overbroad.
C. Vagueness
In his cross-appeal, Pacquing asserts that the circuit
court erred in concluding that the UPCPI statutes are not
unconstitutionally vague.19 Pacquing contends that the plain
language of the UPCPI statutes “lack precision, do not provide
any standard for a citizen to determine what specific
information he or she is forbidden to possess, and are subject
to ad hoc, inconsistent, and arbitrary enforcement by law
enforcement, prosecutors, juries, and the courts.” Thus,
Pacquing concludes that the UPCPI statutes are
19
At the outset, the State contends that this court lacks subject-
matter jurisdiction over Pacquing’s cross-appeal because, under the facts of
this case, there is no statute that would permit Pacquing to commence his
cross-appeal. Pacquing responds that he is permitted to file a cross-appeal
pursuant to HRS § 641-11 (Supp. 2013) and this court’s supervisory powers
under HRS § 602-4 (1993). We need not resolve this matter. As Pacquing also
points out, “we have consistently held that where the decision below is
correct it must be affirmed by the appellate court even though the lower
tribunal gave the wrong reason for its action.” State v. Taniguchi, 72 Haw.
235, 239, 815 P.2d 24, 26 (1991). In this case, the Order Invalidating the
UPCPI Statutes is based on the circuit court’s holding that the statutes are
overbroad, but the order also rejected Pacquing’s argument that the statutes
are unconstitutionally vague. Because we do not find the statutes to be
overbroad, we must consider whether the circuit court’s Order Invalidating
the UPCPI Statutes may be affirmed on the basis that the UPCPI statutes are
vague, even assuming there were no statutory authority for Pacquing’s cross
appeal.
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unconstitutionally vague under both the federal and state
constitutions.
1. HRS § 708-800 Is Not Sufficiently Definite
A penal statute is void for vagueness “if it does not
define a criminal offense ‘with sufficient definiteness [so]
that ordinary people can understand what conduct is prohibited
and in a manner that does not encourage arbitrary and
discriminatory enforcement.’” State v. Alangcas, 134 Hawai#i
515, 530, 345 P.3d 181, 196 (2015) (quoting State v. Beltran,
116 Hawai#i 146, 151, 172 P.3d 458, 463 (2007)). Criminal
statutes are subject to a stricter vagueness analysis than civil
statutes, and criminal statutes that reach fundamental rights
and conduct protected by the constitutions of this State and the
United States, such as the rights guaranteed by the First
Amendment to the U.S. Constitution and article I, section 4 of
the Hawai#i Constitution, are subject to an even stricter
standard. Id. Thus, HRS § 708-839.55, as a criminal statute,
is subject to a stricter vagueness analysis than that used in
evaluating civil statutes. Id. The analytical framework
underlying a void-for-vagueness challenge has been summarized by
this court as follows:
the challenged statute is analyzed to determine if it (1)
is internally inconsistent and incomprehensible to a person
of ordinary intelligence, or (2) invites delegation of
basic policy matters to police for resolution on an ad hoc
and subjective basis. Beltran, 116 Hawai#i at 153, 172 P.3d
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at 465. If the statute is determined to be vague, the
challenger is then required to demonstrate that “the
statute is vague as applied to his or her specific conduct”
or demonstrate that the statute burdens a significant
constitutional right such as a first amendment right.
Id. at 532, 345 P.3d at 198.
Pacquing contends that “[t]he definition [of
confidential personal information] in HRS § 708-800 is so broad
and non-specific as to be effectively unintelligible to ordinary
citizens.”20 To demonstrate this point, he relies on the fact
that the legislature excluded “mother’s maiden name” from the
illustrative list provided in HRS § 708-800 of what constitutes
information in which an individual has a significant privacy
interest. According to Pacquing, nothing in HRS § 708-800
states that “mother’s maiden name” is not confidential personal
information, and thus a reasonable person of ordinary
intelligence would not know that a “mother’s maiden name” is not
a “name, number, or code that is used, alone or in conjunction
with other information, to confirm the identity of a person.”
Pacquing also argues that the UPCPI statutes are vague because
20
As noted, HRS § 708-800 defines “confidential personal
information” as
information in which an individual has a significant
privacy interest, including but not limited to a driver’s
license number, a social security number, an identifying
number of a depository account, a bank account number, a
password or other information that is used for accessing
information, or any other name, number, or code that is
used, alone or in conjunction with other information, to
confirm the identity of a person.
HRS § 708-800 (Supp. 2006).
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there is no indication in HRS § 708-800 as to whether the
meaning of “significant” in HRS § 708-800’s definition of
“confidential personal information” should be determined by
using a subjective or objective standard. Additionally,
Pacquing asserts that the UPCPI statutes are vague because the
word “significant” in HRS § 708-800 can be applied subjectively
by law enforcement and understood differently by those to whom
the law applies. These arguments will be discussed in relation
to each other.
It has often been stated that due process “requires a
statute to be sufficiently clear so as not to cause persons ‘of
common intelligence . . . necessarily [to] guess at its meaning
and [to] differ as to its application[.]’” United States v.
Wunsch, 84 F.3d 1110, 1119 (9th Cir. 1996) (quoting Connally v.
Gen. Constr. Co., 269 U.S. 385, 391 (1926)). The illustrative
list in HRS § 708-800 provides that information in which an
individual has a significant privacy interest includes “other
information that is used for accessing information” or “any
other name, number, or code that is used, alone or in
conjunction with other information, to confirm the identity of a
person.” It is apparent that these clauses are so malleable in
meaning that they do not “provide fixed standards for adjudging
guilt.” State v. Kameenui, 69 Haw. 620, 622, 753 P.2d 1250,
1251 (1988). Consequently, they do not give individuals “of
29
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ordinary intelligence a reasonable opportunity to know what
conduct is prohibited so that [they] may choose between lawful
and unlawful conduct.” State v. Lee, 75 Haw. 80, 92, 856 P.2d
1246, 1254 (1993).
For example, when a person sets up a secure online
account, often she is asked to create a password and choose
security questions and corresponding answers so that if she
forgets her password, she may recover it by providing one or
more of those answers. Any information--even the most random
aggregation of letters or numbers such as the most commonly used
“123456”21--could be a “password” used by a person and therefore
constitute “confidential personal information.” If a person
chooses the name of her first pet, the name of the city in which
she was born, or the name of the street where she grew up as the
security questions, the answers to these questions would be
considered confidential personal information based upon HRS §
708-800’s plain language: “other information that is used for
accessing information” or “name[s] . . . used . . . to confirm
the identity of a person.” HRS § 708-800. One’s zip code may
also qualify as “confidential personal information” because that
information is routinely required by the payment device for fuel
21
See David Goldman, 123456 is the most common password in a
massive Twitter heist, CNNtech (June 9, 2016, 9:14 AM),
http://money.cnn.com/2016/06/09/technology/twitter-password-common-heist/.
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dispensers in gas stations to confirm the identity of a person
who is using a credit card to pay for gas. In that instance,
the person’s zip code is a “number[] or code that is used . . .
to confirm the identity of a person” or, alternatively, “other
information that is used for accessing information.” HRS § 708-
800.22
It may well be the case that the legislature did not
intend for the name of a pet, the name of a city, the name of a
street, or a zip code to qualify as “other information that is
used for accessing information” or as a “name, number, or code
that is used, alone or in conjunction with other information, to
confirm the identity of a person.” HRS § 708-800. However, the
way HRS § 708-800 is drawn does not readily allow for the
preclusion of the name of a pet, city, street or zip code from
the terms of the statute, and thus one is compelled to guess as
to the actual scope and meaning of HRS § 708-800--a further
22
In this opinion, although the discussion focuses on the manner in
which items of information are used by their respective owners to determine
what qualifies as “confidential personal information,” we note that the
clauses “other information that is used for accessing information” and “any
other name, number, or code that is used, alone or in conjunction with other
information, to confirm the identity of a person” do not require the user of
the information to be the person who owns or controls the information. Under
the facts of this case, for example, if the complainant’s spouse was using
the complainant’s name, address, or date of birth in order to access
information or as an identity verifier at the time of Pacquing’s possession,
then those items of information would qualify as “confidential personal
information” with respect to the complainant’s spouse. This further
illustrates the virtual impossibility for an individual to reasonably know
whether or not possession of certain information is proscribed by the UPCPI
statutes.
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indication that the statute is vague. Connally, 269 U.S. at
391; Wunsch, 84 F.3d at 1119.
Hence, Pacquing’s assertion that the word
“significant” in HRS § 708-800 is ambiguous because it is
susceptible of subjective application is correct. Based on the
above analysis, the word “significant,” in quantifying “privacy
interest,” inevitably takes its meaning from the circumstances
of the owner of the information. The same piece of information
may be considered significant for one person but not for a
person under a different set of circumstances. Thus, the
standard for determining whether an item of information is one
in which an individual has a significant privacy interest
appears to be subjective or, more precisely characterized,
personal; that is, any information in which an individual
personally has a significant privacy interest constitutes
“confidential personal information.” These concepts are more
clearly illustrated by going back to the example where a person
chooses a password to an online account and the corresponding
security question, “What is the name of your first pet?” In
that instance, any information chosen as a password would be
considered “information in which an individual has a significant
privacy interest.” HRS § 708-800. In addition, the person
would have a significant privacy interest in the name of her
first pet because she has used it as a way to verify her
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identity in the event that she forgets her online password.
However, the same is not true for a person who does not use the
name of her first pet as an identity verifier; the name of that
person’s first pet would therefore not be included in HRS § 708-
800’s definition of “confidential personal information.”
In the same vein, a person who has been issued a
credit card would have a significant privacy interest in his zip
code if he uses it to confirm his identity whenever he pays for
gas with his credit card. A person who is not a credit
cardholder, meanwhile, would not have the same significant
privacy interest in his zip code, which would therefore be
excluded from the definition of “confidential personal
information.” Accordingly, what constitutes information in
which an individual has a significant privacy interest, under
HRS § 708-800, would depend on the circumstances of the owner of
that information and the manner in which the owner is using that
information. HRS § 708-800, therefore, does not “inform[] the
actor as to how to avoid violating” the UPCPI statutes, Beltran,
116 Hawai#i at 154, 172 P.3d at 466, because under the definition
of “confidential personal information,” possession of the same
type of information could involve conduct, depending on the
circumstances of the owner of the information, that either does
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or does not violate the UPCPI statutes.23 Hence, the UPCPI
statutes “may trap the innocent by not providing fair warning,”
State v. Manzo, 58 Haw. 440, 454, 573 P.2d 945, 954 (1977), and
do not give an individual “of ordinary intelligence a reasonable
opportunity to know what conduct is prohibited so that he or she
may choose between lawful and unlawful conduct,” because the
standard for adjudging guilt under the statutes differs
depending on the circumstances of the owner of the information
and the manner in which the information is being used. Lee, 75
Haw. at 92, 856 P.2d at 1254.
In addition, the term “significant,” if not delimited,
permits “a standardless sweep [that] allows policemen,
prosecutors, and juries to pursue their personal predilections.”
Kolender v. Lawson, 461 U.S. 352, 358 (1983) (quoting Smith v.
Goguen, 415 U.S. 566, 575 (1974)). “Significant” is not defined
by chapter 708 of the HRS, but, as discussed supra, this court
may employ legal or other well-accepted dictionaries in
construing the plain language of terms that are not statutorily
defined. State v. Guyton, 135 Hawai#i 372, 378, 351 P.3d 1138,
23
As a related matter, there will be situations where a person may
or may not have violated the UPCPI statutes depending on the timing of the
possession of the information, which further complicates any attempt at
complying with the UPCPI statutes. For example, once a person changes her
security question and ceases using her pet’s name to access information or to
confirm her identity, the pet’s name no longer constitutes “confidential
personal information” under HRS § 708-800, and one’s possession of the other
person’s pet’s name would not constitute a UPCPI violation.
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1144 (2015). Black’s Law Dictionary defines “significant” as
“[o]f special importance; momentous, as distinguished from
insignificant.” Significant, Black’s Law Dictionary (10th ed.
2014). Similarly, Merriam-Webster defines “significant” as
“large enough to be noticed or have an effect,” “very
important,” or “having a special or hidden meaning.”24 Taken in
the context of the whole phrase “significant privacy interest,”
the word “significant” in HRS § 708-800 means “of special
importance” or “very important.”
Without guideposts, different individuals would tend
to apply the meaning of “significant” in various ways, since
what is “of special importance” to one person may be of minimal
value to another. Cf. Beltran, 116 Hawai#i at 154, 172 P.3d at
466 (reasoning that “the term ‘reasonably appears’ is
susceptible of subjective application among persons enforcing
the regulation and those who must abide by it”). For instance,
a police officer’s understanding and application of the
“significant” standard would inevitably be informed by personal
perspective and experience, which would vary from officer to
officer. Hence, when a police officer is confronted by a
suspect who possesses, without authorization, information that
is not enumerated in HRS § 708-800’s list of confidential
24
Significant, Merriam-Webster, http://www.merriam-
webster.com/dictionary/significant (last visited Nov. 7, 2016).
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personal information, “the statute vests virtually complete
discretion in the hands of the police [officer] to determine
whether the suspect” has contravened the UPCPI statutes on the
basis that there is a significant privacy interest in the
information possessed by the suspect. Kolender, 461 U.S. at 358.
The UPCPI statutes therefore invite “delegation of basic policy
matters to police for resolution on an ad hoc and subjective
basis,” Alangcas, 134 Hawai#i at 532, 345 P.3d at 198 (quoting
Beltran, 116 Hawai#i at 153, 172 P.3d at 465), and “confers on
police a virtually unrestrained power to arrest and charge
persons with a violation,” Kolender, 461 U.S. at 360—61 (quoting
Lewis v. City of New Orleans, 415 U.S. 130, 135 (1974) (Powell,
J., concurring)). Such a result cannot be said to be in keeping
with the fundamental tenets of “fair play” and the “first
essential of due process.” Connally, 269 U.S. at 391; accord
Johnson v. United States, 135 S. Ct. 2551, 2556—57 (2015).
Courts do not expect legislative bodies to draft laws with
mathematical precision and painstaking specificity. See Human
Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1019 (9th Cir.
2010); 82 C.J.S. Statutes § 86, Westlaw (database updated Sept.
2016). However, the “significant” standard under HRS § 708-800
“fails to provide . . . minimal guidelines” for those subject to
it and those who are tasked to enforce it. Kolender, 461 U.S.
at 358.
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The legislature’s exclusion of “mother’s maiden name”
from the definition of “confidential personal information”
exacerbates the uncertainty in scope and meaning of HRS § 708-
800. S. Stand. Comm. Rep. No. 2508, in 2006 Senate Journal, at
1249. Looking at the plain language of HRS § 708-800, “mother’s
maiden name” could qualify as a “name . . . that is used, alone
or in conjunction with other information, to confirm the
identity of a person.” One would have to review the legislative
history of the UPCPI statutes--something that ordinary citizens
do not typically do--in order to discover that “mother’s maiden
name” has been excluded by the legislature from what constitutes
confidential personal information. Hence, a person may
reasonably consider “mother’s maiden name” as confidential
personal information under HRS § 708-800 although in actuality
it is not. Similarly, HRS § 708-800 does not provide any
indicia as to whether any other types of information are
excluded from its definition, which further aggravates the
statute’s tendency to confuse.
In conclusion, given the uncertainty in meaning and
scope of HRS § 708-800 and the indefinite and varying standards
it provides for adjudging guilt, the UPCPI statutes are
inordinately vague. Kameenui, 69 Haw. at 622, 753 P.2d at 1251;
Lee, 75 Haw. at 92, 856 P.2d at 1254; Manzo, 58 Haw. at 454, 573
P.2d at 954.
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2. The UPCPI Statutes Are Vague In Part As Applied to Pacquing
As applied to Pacquing’s conduct in this case--
possessing the last four digits of the complainant’s social
security number and the complainant’s name, date of birth,
address, and driver’s license number25--the UPCPI statutes are
vague in part. HRS § 708-800’s definition of “confidential
personal information” expressly includes as examples “a driver’s
license number[] [and] a social security number.” Hence, as to
those items of information, the UPCPI statutes are not vague as
applied.
On the other hand, the complainant’s name may or may
not qualify as “information that is used for accessing
information” or as a “name . . . that is used, alone or in
conjunction with other information, to confirm the identity of a
person.” Thus, the complainant’s name may be deemed to be
“confidential personal information” depending on how it was
being used at the time of Pacquing’s possession. Similarly, the
complainant’s address may or may not be “information that is
used for accessing information,” HRS § 708-800, depending on
whether the complainant was employing his address as an identity
25
The complaint did not specify whether Pacquing is being
prosecuted for his intentional or knowing possession, without authorization,
of the complainant’s social security number, name, address, date of birth, or
driver’s license number; or of possession of one or a combination of these
items. It will be assumed that Pacquing is being prosecuted for possessing
all the foregoing information.
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verifier in any transaction or to access certain information,
such as banking information. Hence, the complainant’s address
may or may not be “includ[ed]” as “information in which [the
complainant] has a significant privacy interest” depending on
the circumstances of the complainant and the manner in which the
complainant was using the information at the time of Pacquing’s
possession.
The same is true for the complainant’s date of birth;
contingent on how the complainant was using that information, it
may or may not be “information that is used for accessing
information, or [a] . . . number[] or code that is used, alone
or in conjunction with other information, to confirm the
identity of a person.” HRS § 708-800. If, for example, the
complainant was using his date of birth to verify his identity
for certain transactions or to access certain information, then
his date of birth would be “includ[ed]” as “information in which
[the complainant] has a significant privacy interest.” HRS §
708-800. These are exactly the situations, previously
discussed, that make HRS § 708-800 unconstitutionally vague:
Pacquing may or may not have committed the UPCPI offense
depending on the circumstances and the manner in which the
complainant’s information was being used at the time of
Pacquing’s possession. Therefore, as to Pacquing’s possession
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of the complainant’s name, address, and date of birth, the UPCPI
statutes are unconstitutionally vague as applied.
3. The Portions of the UPCPI Statutes that Produce Vagueness
Should Therefore Be Excised
Since the UPCPI statutes are ambiguous, inquiry shifts
to whether the portions that make the statutes vague may be
excised in order to preserve the constitutionality of the
statutes. Where portions of a statute are unconstitutional and
the remainder is not,
[t]he ordinary rule . . . is that “where the provisions are
so interdependent that one may not operate without the
other, or so related in substance and object that it is
impossible to suppose that the legislature would have
passed the one without the other, the whole must fall; but
if, when the unconstitutional portion is stricken out, that
which remains is complete in itself and capable of being
executed in accordance with the apparent legislative
intent, it must be sustained.”
Hawaiian Trust Co. v. Smith, 31 Haw. 196, 202 (1929) (quoting 26
A. & E. Ency. L. 570); see also State v. Alangcas, 134 Hawai#i
515, 535 n.30, 345 P.3d 181, 201 n.30 (2015) (noting “that an
offending portion of a statute may be severable such that the
remaining portion of the law is constitutional”).
The judicial power to excise unconstitutional parts of
a statute is permitted only if the unconstitutional parts are
severable from the constitutional parts of the statute.
Hawaiian Trust Co., 31 Haw. at 202 (reasoning that in order to
strike a statute’s unconstitutional portions, “the two parts
must be capable of separation, so that each can be read by
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itself”); see also Nelson v. Miwa, 56 Haw. 601, 611, 546 P.2d
1005, 1013 (1976) (“Where part of a statute is unconstitutional
and is inseparable from the remainder, the whole statute is
invalid.”). As succinctly stated by the Hawaiian Trust court,
“if the parts are severable and if the part which remains can be
enforced when standing by itself, and still carry out the intent
of the legislature, it can be upheld as constitutional.” 31
Haw. at 202.
Severability of portions of the HRS is generally
authorized by HRS § 1-23 (2009): “If any provision of the Hawaii
Revised Statutes, or the application thereof to any person or
circumstances, is held invalid, the remainder of the Hawaii
Revised Statutes, or the application of the provision to other
persons or circumstances, shall not be affected thereby.” As
discussed supra, what makes the UPCPI statutes vague is the fact
that “confidential personal information” could include any
information conditioned only on the individualized circumstances
of the owner of the information and the manner in which the
information is being used. Specifically, the phrases “a
password or other information that is used for accessing
information” and “any other name, number, or code that is used,
alone or in conjunction with other information, to confirm the
identity of a person” impart an unbounded meaning to
“confidential personal information” because any information
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could qualify under either or both of the foregoing provisions--
and therefore be considered as information in which an
individual has a “significant privacy interest”--depending on
the manner in which an item of information is being used. These
clauses, as stated, also render the meaning of the phrase
“significant privacy interest” susceptible of varying
interpretations and inconsistent application.26
To eliminate the unconstitutional aspects of the UPCPI
statutes, portions of the HRS § 708-800 definition of
“confidential personal information” must be excised:
“Confidential personal information” means “information in which
an individual has a significant privacy interest, including but
not limited to a driver’s license number, a social security
number, an identifying number of a depository account, [or] a
bank account number, a password or other information that is
used for accessing information, or any other name, number, or
code that is used, alone or in conjunction with other
information, to confirm the identity of a person.”
26
We intimate no opinion as to the constitutionality of other
statutes, e.g., HRS § 92F-14(b), that contain the phrase “significant privacy
interest,” especially since the vagueness analysis differs depending on the
type of statute involved. See Gardens at W. Maui Vacation Club v. Cty. of
Maui, 90 Hawai#i 334, 343, 978 P.2d 772, 781 (1999) (“When a statute is not
concerned with criminal conduct or first amendment considerations, the court
must be fairly lenient in evaluating a claim of vagueness.” (quoting Doe v.
Staples, 706 F.2d 985, 988 (6th Cir. 1983))).
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By deleting from HRS § 708-800 the phrase “a password
or other information that is used for accessing information, or
any other name, number, or code that is used, alone or in
conjunction with other information, to confirm the identity of a
person,” the meaning of “significant privacy interest” and
“confidential personal information” would cease to be dependent
on the circumstances of the owner of the information and the
manner in which the information is being used. After the
deletion of the unconstitutional portions of HRS § 708-800’s
definition of “confidential personal information,” its meaning
would be circumscribed to the enumerated classes of information
preceded by “including” and information similar to those already
enumerated. See State v. Guyton, 135 Hawai#i 372, 379 n.14, 351
P.3d 1138, 1145 n.14 (2015) (noting that word “including”
“merely specifies a particular thing already included within the
general words theretofore used” (quoting Hawaiian Ass’n of
Seventh–Day Adventists v. Wong, 130 Hawai#i 36, 46, 305 P.3d 452,
462 (2013))); In re Waikoloa Sanitary Sewer Co., 109 Hawai#i 263,
274, 125 P.3d 484, 495 (2005) (stating that “including”
signifies “an illustrative application of the general principle”
(quoting Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314
U.S. 95, 99–100 (1941))); Lealaimatafao v. Woodward-Clyde
Consultants, 75 Haw. 544, 556, 867 P.2d 220, 226 (1994) (stating
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that the list following the term “including” was intended “to be
exemplary of the type of claims which may be brought for the
loss of love and affection” pursuant to HRS § 663-3). This
means that a non-enumerated item of “information in which an
individual has a significant privacy interest” would qualify as
“confidential personal information” only if that non-enumerated
item is similar in nature and character to those already
enumerated in HRS § 708-800.
By tethering the meaning of “significant privacy
interest” to the statutorily enumerated list and other
information that are similar in nature and character to those
already enumerated, the likelihood that the phrase “significant
privacy interest” would be applied inconsistently by law
enforcement and understood differently by those to which the
UPCPI statutes apply would also be rectified. This is because,
after the deletion of the unconstitutional portions of HRS §
708-800, the outer limits of what would qualify as “confidential
personal information” would necessarily be informed and
circumscribed by the illustrative classes of information that
are enumerated after the word “including.”
The portion of HRS § 708-800 that remains “is
intelligible, complete and capable of execution.” Damon v.
Tsutsui, 31 Haw. 678, 697-98 (1930) (quoting Territory v. Hoy
Chong, 21 Haw. 39, 43 (1912)). Further, severing the vague
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portions is consistent with our law because the components of
the definition of “confidential personal information” do not
“depend[] on each other, operat[e] together for the same
purpose, or [are] otherwise so connected together in meaning
that it cannot be presumed the legislature would [not] have
passed” the remaining portion of the definition without the
excised portions. In re Atcherley, 19 Haw. 535, 542 (1909).
Indeed, the individual components of the definition are
sequenced in the disjunctive, supporting the conclusion that
each one is sufficiently independent of the others.
Importantly, the remaining portion still carries out
the intent of the legislature. It is clear that the legislature
enacted the UPCPI statutes to address and deter identity theft
by targeting and criminalizing conduct that precedes identity
theft--the possession of confidential personal information.
Conf. Comm. Rep. No. 111, in 2006 House Journal, at 1822, 2006
Senate Journal, at 957; see Pacquing, 129 Hawai#i at 182, 297
P.3d at 198. The portion of HRS § 708-800’s definition of
“confidential personal information” that remains after the vague
portions are excised still effectuates the intent of the
legislature to target and deter conduct that precedes identity
theft because intentional or knowing possession, without
authorization, of a driver’s license number, a social security
number, an identifying number of a depository account, a bank
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account number, or other information similar in nature and
character to those statutorily enumerated would still be a
criminal offense. The legislative history of the UPCPI statutes
yields the conclusion that “the legislature [would] have
preferred what is left of its statute to no statute at all.”
Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320,
330 (2006). This is especially true because of the
legislature’s concern that law enforcement did not possess
adequate legal tools to “curb the rise in identity theft-related
crimes.” Conf. Comm. Rep. No. 111, in 2006 House Journal, at
1822, 2006 Senate Journal, at 957. Hence, it is reasonable to
infer that the legislature would prefer a clearly demarcated
(albeit narrower) statute that law enforcement could use to
deter identity theft and precursors to identity theft over a
situation where an enforcement “loophole” is reopened, thereby
impairing the legislature’s intent to curb identity theft and
precursors to identity theft. S. Stand. Comm. Rep. No. 2508, in
2006 Senate Journal, at 1249.
V. CONCLUSION
For the above reasons, we hold that (1) the complaint
is legally insufficient because it is not readily comprehensible
to persons of common understanding, thus violating article I,
section 14 of the Hawai#i Constitution and the Sixth Amendment to
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the United States Constitution; (2) the UPCPI statutes are not
facially overbroad because they do not criminalize the exercise
of free speech protected under article I, section 4 of the
Hawai#i Constitution and the First Amendment to the United States
Constitution; (3) the UPCPI statutes are partially vague as
applied to Pacquing; and (4) the unconstitutional parts of the
UPCPI statutes shall be severed from the constitutional
portions.
Accordingly, the circuit court’s (1) Order Dismissing
Complaint is affirmed insofar as it found the complaint to be
legally insufficient; (2) the Order Invalidating the UPCPI
Statutes is vacated in accordance with this opinion; (3) the
order denying reconsideration of the Order Dismissing Complaint
is affirmed; and (4) the order denying reconsideration of the
Order Invalidating the UPCPI Statutes is vacated in accordance
with this opinion.
Craig W. Jerome /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Brian R. Vincent
For respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Rhonda A. Nishimura
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