Tech Refactored S2E5 - Put Down That Scanner: Encrypted Police Communications and Civil Liberties

Wed, 09/08/2021

This post is a summary of Season 2, Episode 5 of The Nebraska Governance & Technology Center’s (NGTC) Podcast Series, Tech Refactored. In this episode, host NGTC Director Gus Hurwitz was first joined by Danielle Conrad, Executive Director of the ACLU of Nebraska who introduced the topic of encrypted police communications. Next, Hurwitz spoke with Mailyn Fidler, an expert on constitutional rights who recently authored a piece on the growing use of encrypted communications by local police departments and offered a deep-dive into some of the thorny issues that encrypted police communications present.

            Over the last year, police conduct and transparency has been a subject of intense discussion in the United States. Historically, one mechanism for giving the public insight into both what is going on in their community, and the police’s response, has been police scanners - radio transmissions from officers in the field back to dispatch to which the public has access - either through special equipment, or more recently, through websites dedicated to making that information available in realtime.

            In Nebraska and beyond there has been a movement to encrypt that information, a trajectory that privacy advocates have found troubling. In support of encrypting police communication law enforcement has offered two main arguments. First, they argue that some information that is transmitted over police scanners implicates the privacy of individuals in ways that are problematic - for example police might be passing along an individual’s private information (e.g. social security number) that could be misused should it fall into the hands of bad actors. Even in instances where the information is less sensitive, individuals who are being detained by police have not had the due process of law and have not necessarily even committed a crime - therefore it would be an unfair violation of privacy if the public were made aware that they were being detained in connection with the commission of a crime.

            The second argument law enforcement has made in favor of encrypted communication is that criminals can potentially use the information being transmitted over police scanners to evade the police or frustrate their efforts in other ways (for example, making crank phone calls to lead them away from the scene of a crime). In both of those instances, privacy advocates have argued that carve-outs can be made for certain forms of police communication (the transmission of personal information and active police operations like SWAT teams) that could be sent over encrypted channels, while more general police communication could continue to be conducted over open channels.

            In terms of arguments in favor of keeping police communications accessible to the public, Conrad makes a fundamental argument that, especially in a state like Nebraska that has such strong open government laws, members of law enforcement are fundamentally acting as agents of the people, and as such the public has the right to know how their agents are behaving, and how their tax dollars put toward law enforcement are being spent.

            With regard to events in Nebraska, Conrad notes that in Lincoln the police moved to “a pretty significant level of encryption a few years ago, back in 2019, and they offered up some middle ground kind of access for journalists,” which they accompanied with delayed access to those communications for the public at large. For Conrad, that kind of response is inadequate - “folks across the political spectrum wouldn’t always trust the media to be the filter for that information when it comes out, just like folks wouldn’t trust the government to be the filter for that information.”

            Turning to Fidler, she notes that historically journalists have closely monitored police communications as ‘informational first responders’ who would learn of an incident from police communications and rush to the scene to report. Individual citizens would also listen to police communications, and in that way could act as “citizen watchdogs” of police conduct as well as gleaning a sense of how police resources were being allocated within a community.

            In terms of arguments in favor of encryption, Fidler identifies three main arguments. First, police argue that certain highly sensitive operations, including SWAT raids, need to be encrypted in order to prevent tipping off criminals. Secondly, keeping personal information private, as discussed above. Lastly, there has been concern about individuals jamming police communications, which is something that happened during last summer's protests. Fidler is skeptical about that last argument, as she argues that there are already statutes that make interfering with police communications a crime that address that issue.

            Using a legal analysis outlined in a case known as Richmond Newspapers v. Virginia, in which the court considered whether the press had the right to attend criminal trials, the court took a two-pronged approach in its analysis; first it noted that criminal trials had historically been open to both the press and the public. Second, the court held that “there is a significant, positive role of having the press and public there as a watchdog. That said,” Fidler noted, “that is not an absolute right. So that kind of right of access can be overcome by other important interests.”

            This raises the question of whether there is a distinction between the “formal press” and, especially in the age of twitter and the citizen journalist, individuals who might be livestreaming an event without formal press credentials. This is particularly implicated in one of the proposed workarounds regarding police encryption, which involves allowing the press to apply for decryption licenses so they can have access to encrypted police communications. Fidler argues that these have limited utility, in that they often come with hefty fees and sometimes additional insurance requirements.

            A second potential workaround would involve a dual set of communication systems, where most police information is transmitted on an open channel, but certain privileged information (regarding SWAT raids and personal information, for example) is relayed via encrypted communication systems. Some have argued that having a dual set of communication systems would be cost prohibitive and isn’t practicable in the case of police officers who often have to respond quickly under pressure.

            Looking toward the future, one looming issue is the possibility that police communication systems might be subject to ransomware attacks where police comms are taken offline by bad actors who might demand a ransom payment to bring them back online.

            Given all these concerns, what is a concerned citizen to do who doesn’t want their police department to adopt encrypted communication? Fidler identifies two routes in pushing back against the adoption of encryption - first, citizens could lobby their local police department to say that they don’t support encrypted systems. The second route, which Fidler says has seen more traction, is lobbying the state legislature to pass restrictions on the use of police encryption. As more departments move to adopt encrypted systems, and discourse over police practices continues at an elevated pitch, it will be interesting to see where the issue of encrypted police comms heads in the next several years.

Tags: Tech Refactored Review