Local governments are starting to encrypt routine police radio transmissions, altering a longstanding tradition of journalist access to these communications. Some cities are contemplating media decryption licenses but are also grappling with defining who qualifies for media access. The debate over police radio encryption shows how technology is relevant to First Amendment questions even at the local level, including in states where the Reporters Committee recently launched its Local Legal Initiative to provide journalists and news organizations with direct legal services.
Denver, Colorado, Racine, Wisconsin, Sioux City, Iowa, and Lancaster County, Pennsylvania, are among the localities to encrypt routine police communications. Baltimore, Maryland, recently announced a decision to do so. For years, many local governments have encrypted sensitive police information, including SWAT team communications, but cities are now contemplating encrypting even routine communications.
Police argue that doing so prevents criminals from accessing these transmissions to evade law enforcement, as a robber and a shooter allegedly did in the Denver area. Police have also expressed increased concern about interference with their radios, pointing to, for instance, several instances in Chicago during the summer’s protests. But reporters argue that these transmissions help them inform the public of safety risks and serve as a source of timely alerts of newsworthy events.
Some cities have responded by instituting an exception to blanket encryption for members of the news media, allowing them to access the communications on request or through standing decryption licenses. For instance, the Eastern Riverside County Interoperable Communications Authority, an entity serving five Southern California cities, allowed access to local journalists from at least four news outlets on request from 2010 to 2019, when the entity revoked the exception. Denver offers decryption licenses, but at a cost of $4,000 and subject to substantial and expensive insurance requirements.
State legislators in several states have introduced bills that would require some form of access to these encrypted communications, but legislative efforts have largely failed. A 2019 bill introduced, but later withdrawn, in California would have required any law enforcement agency to “provide access to the encrypted communications to a duly authorized representative of any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.” In Colorado, a 2018 bill that would have required routine police communications to be broadcast unencrypted also failed.
These bills raise questions about how to decide whether an individual is a “duly authorized representative” of the media. This question has come up repeatedly in the local context recently, especially as courts struggle with questions of media access during protests.
This issue effectively inverts the arguments that government officials and private parties usually make in the “encryption wars,” where law enforcement seeks access and private parties resist. We continue to monitor the issue.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.