[Scan-DC] Eastern Riverside County Encrypting!

[Alan Henney]

City News Service

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written permission of the City News Service, Inc.

December 6, 2018 Thursday 2:06 AM PST

Emergency Info in Palm Springs Area Restricted: Government Cuts Media Access

LENGTH: 3338 words

Eds: In a unique cooperative effort by much of the media in the Palm
Springs area, the following story was co-published and co-reported by the
Desert Sun newspaper, KESQ-TV, KMIR-TV and City News Service. The story
below was carried on the Desert Sun, and stories on the topic were also to
be carried by KESQ and KMIR. The story details a decision by government
officials to restrict public access to information about breaking emergency
public safety developments such as earthquakes, floods, fires and crime
stories. The restrictions would occur because government officials are set
to prohibit media reporters from hearing public safety radio calls on
encrypted scanners. The story includes government officials' explanations
and reactions from media representatives.

By AMY DiPIERRO

Palm Springs Desert Sun

(This report was co-published and co-reported with KESQ, KMIR and City News
Service.)

PALM SPRINGS - The governmental body behind the police radio system
covering five law enforcement agencies in the Coachella Valley says it has
decided to limit the radio system to law enforcement personnel, a move that
would cut off access to local journalists.

The Eastern Riverside County Interoperable Communications Authority, or
ERICA, which operates the encrypted radio channels used by local police in
Beaumont, Cathedral City, Desert Hot Springs, Indio and Palm Springs, said
the policy change is necessary in order to comply with laws protecting
privacy and safety.

But local news outlets say the move will do the opposite, endangering the
public by hampering media coverage of disasters like earthquakes or active
shooters.

Since it launched in 2010, ERICA has allowed The Desert Sun, KESQ, KMIR and
City News Service to listen to its radio system, which is not available to
the general public. In November, ERICA alerted the four news outlets it had
decided to revoke their access to the broadcasts.

The radio at KESQ went silent shortly thereafter. Radios at The Desert Sun
and KMIR continue to broadcast.

Chief Travis Walker of Cathedral City, who serves as chairman of the ERICA
Technical Advisory Committee, said the agency decided to confine ERICA
communications to law enforcement after legal counsel warned that allowing
media access risked releasing protected information like warrants and
medical history to people unauthorized by law to hear it.

"If I pulled you over and ran your driver's license, I get information that
is deemed classified," Walker said, "and the only people that can hear that
information are people that have a right to know and a need to know," like
the police.

He said the goal is to safeguard the privacy rights of violent crime
victims and minors as well as the safety of officers.

Walker said ERICA risked "significant fines, penalties and even criminal
liability" by allowing the media access to the radio communications,
including that the Department of Justice could pull the police department's
access to the California Law Enforcement Communications System, or CLETS.
CLETS is the computer network law enforcement agencies in California use to
access shared databases like vehicle registration records and criminal
histories. He said the agency "received a very terse scolding from DOJ"
regarding access to encrypted radios.

Law enforcement officers use radios to communicate about incidents like
crimes, traffic accidents and disasters. In recent years, some police have
encrypted the channels to prevent criminals from eavesdropping on their
conversations and to preserve private information disclosed on the radios,
like medical conditions. Other agencies, even some that have chosen to
encrypt their channels to the general public, have still allowed the media
to listen to their broadcasts in real time or with a one-hour time delay.

Adam Scott Wandt, an assistant professor of public policy at John Jay
College of Criminal Justice in New York, said law enforcement agencies must
balance the imperative to protect officers, crime victims and the general
public with the need to be "open and transparent."

"I can think of very little reason to keep the legitimate media out of law
enforcement communications," he said.

ERICA's policy reversal comes two months after the entity sent the four
media outlets privy to its radio broadcasts a new user agreement. The
agreement would have established "rules of engagement" for members of the
media responding to breaking news scenes and would have barred the outlets
from publishing information from ERICA broadcasts unless they obtained the
broadcast through a record request or received written verification from
ERICA.

With the exception of City News Service, a wire service whose news updates
are published by subscribers like The Desert Sun, leaders of the four local
news organizations did not sign the agreement, believing it to be overly
restrictive.

The organizations argued that constraining "or blocking" media access to
the ERICA system could impede the speedy dissemination of information about
local hazards.

"The big issue here is not about the media, or what we can get, per se, or
how we've been treated," said Doug Faigin, president of City News Service.
"The real issue is about safety to people in the Coachella Valley."

Desert Sun Executive Editor Julie Makinen said in an email that even if
media outlets can obtain ERICA communications with a records request, the
process could stop urgent reporting about a developing situation.

"Access to real-time information serves the immediate public interest, so
that media may report on a situation that is a grave threat to public
safety " for example, a rapidly moving wildfire, a terrorist attack, or an
airplane crash ... by advising the public of law-enforcement activity in a
certain area and advising the audience to stay away from a location," she
said. "We believe that in fact that media awareness of such information in
real time can advance and assist the work of emergency personnel, rather
than impede it."

Professional journalists are typically trained not to publish news directly
from police radios, in order to avoid repeating information that might not
be accurate, could endanger officers or risks violating privacy rights.
Each local news outlet said its reporters follow such best practices.

Kelly McBride of The Poynter Institute, a nonprofit journalism school in
St. Petersburg, Florida, said journalists should consider police scanners
or similar tools used to monitor police radio communications as a way to
prompt inquiry into developing situations, rather than a source of fact. At
the same time, she said, journalists should maintain the ability to report
about police misconduct that may come to their attention through scanner
communications.

"You don't want to agree to cover for (law enforcement), but you do want to
agree that you would verify that what you're reporting is true and accurate
and in proper context," she said.

Local news outlets said ERICA did not cite a single instance of the media
misusing its access to ERICA prior to its decision to revoke access.

"Thousands of police and emergency agencies across the state and country
permit such access, and do not find it in conflict with privacy and other
laws," Makinen said.

ERICA is a Joint Powers Authority started by its member cities under
California law. Local cities began to discuss a new communication system in
2007, touting the overhaul as a way to ensure member cities could
coordinate emergency response. It was established in 2008. The system
includes police department radio communications, but does not include city
or county fire departments.

Media outlets were able to obtain access to ERICA in a last-minute
compromise in 2010, shortly before the system launched. According to a
contemporaneous email that Timothy Kiley, Assistant News Director at KESQ,
sent to colleagues at KESQ, ERICA originally said it planned to cut off
media access to its system at a meeting between representatives of KESQ,
KPSP and KMIR and local law enforcement in July 2010. A representative of
The Desert Sun was not present at the meeting.

In the email, Kiley said Richard Banasiak, who was the executive director
of ERICA, told them "all the new radios would be encrypted and that
information would not be shared with the media." Instead, commanders would
call the media "when events required it."

"For the departments to decide which stories will be shared with the media
and which ones will not is down right censorship," Kiley wrote in the
email. "I explained that our responsibility was to not only report the news
but to provide some oversight into what police agencies were doing."

Later, the police agencies allowed the outlets to purchase equipment to
maintain ERICA access. KESQ paid $6,918 to buy radio equipment, according
to a purchase order shared with The Desert Sun.

KESQ also signed agreements with ERICA member cities, in which it agreed to
use a radio "for monitoring purposes only," rather than use the radio to
make its own transmissions.

The compromise between news outlets and the law enforcement agencies stood
until this year.

ERICA Executive Director Kari Mendoza said ERICA began to discuss the
previous agreement with media organizations in October 2017, after some
member cities wondered how members of the media were able to arrive at the
scenes of investigations prior to law enforcement.

"How do they even know about it?" Mendoza remembered members asking. "They
hadn't called me."

Mendoza said the query prompted ERICA and its member cities to revisit
their policy regarding media access.

Around September 2018, Mendoza sent KESQ, KMIR, City News Service and The
Desert Sun copies of a user agreement governing their ability to use ERICA
broadcasts to inform their reporting. The agreement prohibited media
organizations from publishing information obtained through ERICA "unless
first verified by ERICA in writing or obtained by User through a Public
Records Act request" and required media with access to ERICA to attend
"confidentiality training."

Besides guidelines on the use of ERICA, the agreement also proposed "rules
of engagement" for media personnel responding to the scene of an
investigation. The rules bound media to seek guidance on filming location
from public safety officials and to agree not to "interfere with the public
safety operations nor encroach upon the Investigative Site." The agreement,
additionally, required media to obtain written permission before
broadcasting "tactical information" and to cease broadcasting upon request.
Another provision barred media from flying a drone at the site of an
investigation without getting written permission.

Some legal experts said the user agreement presented to media outlets in
September raised red flags and freedom of speech concerns.

Adam Marshall, a staff attorney at Washington, DC-based Reporters Committee
for Freedom of the Press, said the terms proposed by ERICA were "directly
contrary to the role of the press" and put news agencies into a Catch-22
situation "where you're going to be hobbled no matter what you decide."

John Banzhaf, professor of public interest law at George Washington
University in Washington, DC, said ERICA's proposed user agreement with
media organizations was "very restrictive," indicating an intent to
suppress media access.

"Any time a governmental body seeks to restrict or impede any First
Amendment speech, they must have a compelling interest and they must use
the least restrictive method," he said.

Adam Scott Wandt at John Jay College said language in the agreement
requiring news outlets to obtain written permission prior to broadcasting
tactical information "would make it difficult for media to provide live
coverage of any disaster."

"Because you have to seek permission, I believe that that butts up against
your First Amendment privileges," he said. "As an attorney, I question
whether the government has a legitimate necessity to do so."

Now the proposed user agreement appears to be moot. In November, ERICA
notified The Desert Sun and other news outlets that the ERICA board had
opted to limit access "to law enforcement and other qualified personnel."

ERICA's board of directors is comprised of elected officials in each of its
member cities: Mayor Scott Matas of Desert Hot Springs, Mayor Stan Henry of
Cathedral City, Mayor Robert Moon of Palm Springs, Mayor Mike Wilson of
Indio and Council Member Lloyd White of Beaumont.

Besides its board, ERICA has a Technical Advisory Committee. Its chairman
is Chief Travis Walker of Cathedral City. Palm Springs City Manager David
Ready is its vice chair. Assistant City Manager Rob Rockwell of Indio, Lt.
Greg Fagan of Beaumont and Chief Dale Mondary of Desert Hot Springs also
sit on the committee. Lena Wade of Slovak Baron Empey Murphy & Pinkney is
legal counsel for ERICA.

At least two members of the board, Moon and Wilson, were not present for
the November meeting in which ERICA voted to rescind media access to ERICA.
Both Moon and Wilson sent representatives in their absence.

Mendoza said the decision was made by unanimous board vote, after each city
consulted with its city attorney. She said ERICA member agencies consulted
the California Department of Justice and were directed that only law
enforcement have the right to access information in the California Law
Enforcement Telecommunications System, or CLETS, which officers may
reference verbally using radios.

"We want to be good partners with the media," Mendoza said, but "DOJ is
pretty clear about what you can and can't have access to."

Since alerting media outlets to ERICA's plan to confine ERICA
communications to law enforcement, Mendoza said she has been contacted by
the Department of Justice again, repeating that access to CLETS information
should be limited to law enforcement.

"They've reiterated that we've made the correct decision," she said.

Walker cited the example of the San Bernardino County Sheriff's Department,
which encrypted its radio communications in February 2018. Walker said that
once an agency encrypts its radio communication, the expectation is that
the communication will no longer be open to the public.

"Just because we may have done something in the past, now that we find out,
'Oh, maybe we shouldn't have been doing it,' do you keep doing it or do you
effect the change?" he said. "If we don't effect the change moving forward,
that's the problem."

In a written statement on behalf of ERICA, Walker said ERICA's "obligation
to constantly review its policies" prompted the change.

"While we recognize the media's critical role in gathering information and
reporting on news events impacting our communities, ERICA is committed to
the (sic) protecting the safety of the public and promoting and protecting
the privacy rights of individuals," as detailed in state and federal law.

Walker and the police chiefs of other member cities said their departments
are committed to getting emergency information out to the public and press
quickly, including through social media.

Matas, Moon, Wilson and Mondary explained their cities' positions on
revoking media access in emails to KESQ.

Mondary said the city voted in favor of the change to limit radio
broadcasts to law enforcement even though the choice "was not an easy
decision," given the media's role in providing information to the public.
But he said Desert Hot Springs risks lawsuits or censure from the
Department of Justice and Federal Communications Commission if it releases
confidential information.

Moon said the November 8 ERICA meeting "was called on very short notice"
and that Palm Springs "would have preferred to preserve the status quo if
possible but based upon applicable law reluctantly decided to support
encryption."

Wilson said Indio supported ERICA's initial attempt to strike more
restrictive user agreements with media outlets but that "other
jurisdictions were adamant from the beginning of the policy discussion to
just end access altogether per legal authorities."

In a written statement on behalf of ERICA, Walker said limiting channel
access to law enforcement is compliant with the requirements of the
California Law Enforcement Telecommunications System, the FBI Criminal
Justice Information Services, the California Public Records Act and the
California Penal Code.

In particular, he cited a portion of the policy governing the California
Law Enforcement Telecommunications System, or CLETS, which says CLETS can
only be accessed by "authorized law enforcement, criminal justice personnel
or their lawfully authorized designees" and prohibits "accessing and/or
releasing information from CLETS for non-law enforcement purposes...unless
otherwise mandated."

The California Department of Justice responded to an inquiry from The
Desert Sun with a written statement.

"To be an authorized recipient of CLETS-derived information, the agency
must be either a law enforcement agency, a criminal justice agency or there
must be a regulation, statute or ordinance that authorized the agency to
have access to the information," the statement said.

Following subsequent and repeated questions seeking clarification, the
Department of Justice cited CLETS and FBI policies, saying it "has always
been the case that only authorized personnel may have access for criminal
justice purposes to any channels where CLETS data is being broadcast. The
CA DOJ did not ask ERICA to revoke media's access to ERICA. As stated
above, it is standard policy that only authorized personnel for criminal
justice purposes are entitled access to CLETS data."

Palm Springs Police Chief Bryan Reyes said he was advised that the
Department of Justice defines "the mere hearing of the activity that goes
up our airwaves" as constituting access to CLETS.

But W. David Ball, an associate professor at Santa Clara University School
of Law who has studied information sharing among law enforcement, said the
language cited by ERICA raises questions about what counts as access to
CLETS.

"You're not having access to the system, but you are having access to
information released from it," he said. "The question really does become,
what do we really mean by CLETS information?"

Palm Springs City Attorney Edward Kotkin said police agencies must "march
in lockstep" with guidance from the Department of Justice.

"We just can't take chances when our lifeblood, information that our
officers rely on the field, is not something that we control," he said.

Aaron Mackey, an attorney with the Electronic Frontier Foundation, said he
struggles to understand how granting public access to radio broadcasts
would violate CLETS policies, which are designed to prevent law enforcement
misuse of the database.

"It just seems to me like this situation is not really contemplated by the
rule," he said. "Privacy is being used to prevent public access."

Chief Bryan Reyes of the Palm Springs Police Department said his department
is working on a way to share police log information in real time and
suggested media meet with his department on a monthly basis to conduct
"tabletop exercises" and "develop your personnel as well as ours" to
prepare for a natural disaster.

Chief Travis Walker of Cathedral City said he would be willing to sit down
face to face with local media to "take the emotion out of it."

"It's almost like this is being taken as a personal attack against the
media and it's not," he said.

News outlets said they are weighing how to respond to ERICA's change of
policy.

"Our ability to listen to the scanners and push out information, to keep
people away from traffic hazards or fires," said Gino Lamont, news director
and anchor at KMIR, "is vital to the public service that all media
provides."

Makinen said Desert Sun reporters would be willing to undergo the same
training as law enforcement personnel before receiving access to ERICA
transmissions.

Local media are contemplating other recourse, too.

"The Desert Sun and other media organizations are considering all options,
including legal action, to preserve access to the types of information long
available through ERICA," Makinen said.