The Department of Justice requires encryption of "specific information" disseminated through radio traffic "while allowing for radio traffic with the information necessary to provide public safety," according to an October bulletin.
But the total encryption of a source of information sets a dangerous precedent, according to watchdog organizations, including the Electronic Frontier Foundation and Reporters Committee for Freedom of the Press.
One of the fundamental purposes of access to the dispatch transmissions is so the public has knowledge of information about their communities. It's why the press access is so important, said Aaron Mackey, staff attorney for the Electronic Frontier Foundation.
The move to encrypt, while recent for local police departments, has already stirred up controversy in other areas of the country, including Colorado and southern California. In some jurisdictions, news organizations and law enforcement have tried to come up with solutions that walk the line between continuing to provide vital access to police activity while also shielding private information from public view. With high price tags and clunky interfaces associated with these workarounds, however, news organizations say the jury is still out as to whether an alternative to total encryption can be found.
Falling in line
Palo Alto's police department began encryption in early January, but others are planning to enact the change within the next three years.
Menlo Park Police Department is currently working with its radio vendor for a redesign of its current radio system with a projected date of no later than December 2023, said Tracy Weber, communications and records manager.
Atherton police Chief Steve McCulley said that his department will need to upgrade its communications center and radios. He estimated the cost at $250,000. The department plans to be compliant with the state mandate by 2023. The Atherton police have just one radio communication channel and can't switch to other frequencies to encrypt specific information, he said.
"It's an unfunded mandate (and is) quite a financial impact on a small agency like ours," he said.
Relaying the private information by computer or cellphone, separately from the radio, would be too difficult. Having to leave a person's property and go back to the patrol car would compromise officers' safety, he said.
"It's not an efficient way to provide that information. Oftentimes (we) need to have that information as soon as we can over the radio. We have no choice but to move to encryption," he said.
Likewise, Mountain View Police Department spokeswoman Katie Nelson said using both the radio and a separate channel for sensitive information could jeopardize officers' safety.
"An officer stops someone and checks their information over the air to then be told by the dispatcher that the person is a wanted felon considered armed and dangerous. This type of information is critical to know, not only for the officer dealing with the person, but also to others working in the city so they can instantly respond and assist," she said.
Also, more staff would be needed.
"It would require additional staffing in the emergency communications center to monitor an additional radio channel," she said.
East Palo Alto police Chief Al Pardini said his department is looking into encrypting its communications in 2023.
Currently, the San Jose, Morgan Hill and Sunnyvale police departments have made the switch to encrypted radio channels, Nelson said. Mountain View plans on making the transition in March. Every law enforcement agency within Santa Clara County will be switched over to encrypted transmissions by the end of this year, she said.
Alternatives for access
For news organizations, the loss of access to police radio transmissions is thorny.
The FBI and the California Department of Justice (DOJ) maintain that media members are not authorized to receive information that is obtained from the California criminal telecommunications system, Atherton's Chief McCulley said. A person receiving CLETS information must have "a right to know" the information and a "need to know" of the information under DOJ and FBI mandates.
"I understand from the media standpoint it's kind of like radio silence," Sunnyvale Capt. Hank Syu said.
Some police departments throughout the country offer a way for credentialed media to listen in on radio transmissions: decryption licenses.
A license with the Denver Police Department in Colorado allows the media to utilize a decryption "key," which gains limited access to specific police channels and transmissions. While the decryption is offered at no cost, the media organizations must purchase specific radios, have liability, worker's compensation, commercial general liability, media professional liability and cyber liability insurance policies, according to a copy of the licensing agreement.
Fidler said those fees and the cost of specified equipment can amount to thousands of dollars, effectively cutting out small news organizations.
Encryption of radio transmissions in 2018 in Riverside County, California, led to a legislative attempt to continue access by the news media.
Then-state Assemblyman Todd Gloria introduced a 2019 bill, AB 1555, that would have required any law enforcement agency to provide access to the encrypted communications to "a duly authorized representative of any news service, newspaper, or radio or television network, upon request." AB 1555 went through revisions in the assembly and state senate before Gloria withdrew it due to its failure to make it to a vote under legislative deadlines.
Nick Serrano, Gloria's communications director, told the Desert Sun newspaper of Palm Springs at the time that they noticed a nationwide trend toward police encryption of radio communications.
"We believe news media have a right to access police radio communications. As much as this is an issue of transparency and right-of-access, Assemblymember Gloria also sees this as a public safety issue. We rely on media outlets to provide emergency information to the public and much of that is garnered through their access to police radio communications."
Mackey, of the Electronic Frontier Foundation, said legislation would probably be the only way the media would gain access to the encrypted transmissions. California law currently gives journalists the right to access emergency scenes, but there is not a similar right to access the police communications.
"The hard part is that I don't know, at least in California, that the public has a legal right to access the communications. As a matter of public policy, it's essential, but it's not a right of access as a Constitutional right of access," he said.
Though the legislation failed to progress, one Riverside County police department found a way to continue providing some level of information to the news media.
In a phone call on Wednesday, Lt. William Hutchinson of the Palm Springs Police Department described how his department provides media access to its computer aided dispatch (CAD) system, which offers call information in real time. The press page is different from the one the police see in that Hutchinson can control what information goes out. He regulates traffic stop information, for example, because he doesn't want to release information about the location of unmarked patrols. But violent crimes, thefts and other incidents that affect the community are listed.
A map with icons and a log show the time, location, type of crime, incident number and if the call is active. The public has access to a separate police log later, after the incidents have closed.
The system cost less than $2,000 to create and about $1,000 to add on to the current CAD program, he said.
Julie Makinen, executive editor at The Desert Sun, said she applauds the Palm Springs Police Department for trying to come up with a solution. But "the fact is, it's not the same as listening to the scanner," she said.
One can always listen to the scanner in the background while working or listen on a portable scanner while driving, she said. The CAD-access website needs to be continually refreshed and it only offers one line of information out of a long stream of scanner traffic. The information doesn't tell news staff whether an incident that starts off as innocuous has escalated into something worse, she added.
"A domestic violence incident that turns into a police-involved shooting doesn't show up on a page with only one line," she said.
Local news media are conduits on behalf of a community, especially if there's a school shooting or other emergency incident.
"I think it's critical for public safety," she said of media access to the transmissions. "The media is a partner, informing the public and directing people away from the site," she said.
The encryption "is a solution to a problem that doesn't exist," Makinen said.
Is police information ripe for abuse?
While the FBI and California Department of Justice (DOJ) say private information might fall into the wrong hands when the public and the press listen to radio transmissions on scanners, there have been hundreds of instances of police abuses of the system by law enforcement staff themselves, according to the San Francisco-based Electronic Frontier Foundation, an international nonprofit organization advocating for privacy and accountability regarding technology and the law. The foundation has researched abuses of the system by law enforcement employees for the past five years.
The foundation has pressed for transparency over police abuses of the California Law Enforcement Telecommunications System (CLETS) system. In 2017 alone, they found 143 cases of privacy abuses, according to the foundation's reports. The abuses included using the CLETS information to stalk ex-partners, gain advantage in custody proceedings and to screen potential online dates. In one of the worst incidents, a Los Angeles police officer allegedly attempted to leak records on witnesses to the family of a convicted murderer, the foundation noted.
Electronic Frontier Foundation pushed the state DOJ to better track the abuses. In 2018, the state DOJ began requiring law enforcement agencies to report 100% of abuses. Failure to comply could result in sanctions and removal from using the CLETS service, according to a foundation report.
Interest in protecting private information grew beyond identity theft concerns and police use for private matters, however. In 2019, the Trump administration was pushing for law enforcement agencies to divulge information about detained individuals and their immigration status to the U.S. Immigration and Customs Enforcement (ICE). There were concerns that ICE was or would be violating SB 54, the 2017 California Values Act, which prevents state and local law enforcement organizations from using their resources to aid federal immigration enforcement agencies.
Aaron Mackey, staff attorney for the Electronic Frontier Foundation, said the pendulum has now swung the other way, with regulation meant to prevent improper security access by officers as a pretext to cut off public access to police communications.
One of the fundamental purposes of access to the dispatch transmissions is so the public has knowledge of information about their communities. It's why the press access is so important, he said.
"I'm not aware of any case where (the press) was listening with the purpose of obtaining personal information and misusing it," he said.
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