[Scan-DC] CJR: Encryption efforts in Colorado challenge crime reporters, transparency

[Alan Henney]

>From the Columbia Journalism Review:  *"A national study published in 2017
found that police PIOs zealously try to control the narratives about their
departments. That’s especially concerning in Colorado, where law
enforcement officials have downplayed transparency implications by saying
they will release information about breaking news on social media, in press
releases, and in daily reports—as if those are reasonable substitutes for
independent reporting."*

Encryption efforts in Colorado challenge crime reporters, transparency
https://www.cjr.org/united_states_project/police-scanner-encryption.php

COLORADO JOURNALISTS ON THE CRIME BEAT are increasingly in the dark. More
than two-dozen law enforcement agencies statewide have encrypted all of
their radio communications, not just those related to surveillance or a
special or sensitive operation. That means journalists and others can’t
listen in using a scanner or smartphone app to learn about routine police
calls.

Law enforcement officials say that’s basically the point. Scanner
technology has become more accessible through smartphone apps, and
encryption has become easier and less expensive. Officials say that
encrypting all radio communications is good for police safety and
effectiveness, because suspects sometimes use scanners to evade or target
officers, and good for the privacy of crime victims, whose personal
information and location can go out over the radio. They also cite
misinformation as a reason to encrypt. Kevin Klein, the director of the
Colorado Division of Homeland Security and Emergency Management, said
people listening to scanner traffic during a 2015 Colorado Springs shooting
live-tweeted the incident and, in doing so, spread false information about
the shooter’s identity and the police response.

But encrypting all radio communications makes it harder to cover crime.
Journalists usually don’t use scanner traffic directly in their reports,
but they often use the traffic to learn about and respond immediately to
breaking news. In that sense, expanding encryption reduces transparency.

“If you’ve ever worked in a newsroom, you know how important the police
scanner is to covering a community,” Chip Stewart, a media law professor at
Texas Christian University, says. “You can’t get out to cover something if
you don’t know it’s happening, and journalists would be at the mercy of
police public information officers. Do we want the first draft of history
dictated by police PIOs?”

Definitely not. A national study published in 2017 found that police PIOs
zealously try to control the narratives about their departments. That’s
especially concerning in Colorado, where law enforcement officials have
downplayed transparency implications by saying they will release
information about breaking news on social media, in press releases, and in
daily reports—as if those are reasonable substitutes for independent
reporting.

Some Colorado journalists are frustrated. Police in the city of Longmont,
northeast of Boulder, have encrypted their radio communications since
September. Madeline St. Amour, a reporter at the Longmont Times-Call, says,
“It’s made my job as a crime reporter more difficult and led to late
coverage for serious events. Police can say that press releases or social
media notices are equivalent if they want, but there really isn’t anything
that beats a scanner in timeliness. It’s also hard to spin things in real
time.” Longmont plans to reevaluate its encryption program this spring.

I would think police would want scanner traffic public. It builds citizen
trust and shows they are busy earning their tax-paid salaries. Otherwise,
shrouded in secrecy, police are viewed more suspiciously and lose the trust
of the public.

More broadly, press advocates worry that such encryption efforts will leave
journalists at the mercy of law enforcement agencies that might not always
be motivated to alert the press to incidents (e.g., any questionable
officer-involved shooting). “The scanner functions as a check-and-balance
to keep law enforcement agencies honest,” Frank LoMonte, the director of
the Brechner Center for Freedom of Information at the University of
Florida, says. “Without that independent source of information, police are
operating on the honor system.”

David Cuillier, a media law professor at the University of Arizona and a
member of the Society of Professional Journalists’ Freedom of Information
Committee, adds, “I would think police would want scanner traffic public.
It builds citizen trust and shows they are busy earning their tax-paid
salaries. Otherwise, shrouded in secrecy, police are viewed more
suspiciously and lose the trust of the public.”

Colorado is not the only state where law enforcement agencies have
encrypted all of their radio communications. Departments in California,
Florida, and Nebraska, among others, have done it. Nationwide, it’s common
for police to use encrypted channels for surveillance or a special or
sensitive operation. But Colorado is notable for its large number of
agencies encrypting everything.

The state is also notable for legislative efforts to establish encryption
rules. Last year, Rep. Kevin Van Winkle, a Republican, introduced House
Bill 18-1061 to prohibit law-enforcement agencies from broadly using
encryption, which the bill said “should be exceptional rather than
routine.” It would have allowed agencies to encrypt for tactical and
investigative purposes. Although the bill failed to make it out of
committee, it may be reintroduced this year in some form.

Three nonprofit organizations—the Colorado Press Association, the Colorado
Broadcasters Association, and the Colorado Freedom of Information
Coalition—are working with police officials to reconcile their interests
and come up with a solution that emphasizes transparency. “Colorado has had
several post-Columbine active-shooter incidents and numerous undercover
drug-related sting operations,” Steve Zansberg, a Denver-based First
Amendment lawyer who serves as president of the CFOIC, says. “The press has
demonstrated, time and time again, its willingness to work collaboratively
with law enforcement to ensure officer safety while… keeping its viewers
and readers informed.”

Jeffrey Roberts, CFOIC’s director, adds, “Listening to radio communications
lets the media alert the public to potentially hazardous situations—places
people should probably avoid for periods of time—often more quickly than
the police because of the media’s reach via TV, radio, and social media.
Police say they need to go dark for public-safety reasons, but there are
also public-safety reasons for letting journalists listen in.”

Jonathan Peters is CJR’s press freedom correspondent. He is a media law
professor at the University of Georgia, with posts in the Grady College of
Journalism and Mass Communication and the School of Law. Peters has blogged
on free expression for the Harvard Law & Policy Review, and he has written
for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired,
and PBS. Follow him on Twitter @jonathanwpeters.