Across the country law enforcement units are encrypting their communications, barring the general population and journalists alike from following police radio channels. Weighing concerns with privacy and officer safety with citizen watchdog oversight and freedom of the press is an extremely complex policy issue. On this episode we get into why that may matter with an introduction from Danielle Conrad, Executive Director of the ACLU of Nebraska and an in-depth dive into the issue with Mailyn Fidler, an expert on constitutional rights and intellectual property who recently authored a piece about the growing use of encrypted communication by local police departments, who will discuss with us some of the potential issues that covert police communication presents.
Glossary:
Encryption: the process of encoding information by converting the original representation of the information into an alternative form known as ciphertext that only those with the key to that text can access.
FOIA Request: a request for information from the government using the Freedom of Information Act
Across the country law enforcement units are encrypting their communications, barring the general population and journalists alike from following police radio channels. Weighing concerns with privacy and officer safety with citizen watchdog oversight and freedom of the press is an extremely complex policy issue. On this episode we get into why that may matter with an introduction from Danielle Conrad, Executive Director of the ACLU of Nebraska and an in-depth dive into the issue with Mailyn Fidler, an expert on constitutional rights and intellectual property who recently authored a piece about the growing use of encrypted communication by local police departments, who will discuss with us some of the potential issues that covert police communication presents.
Glossary:
Encryption: the process of encoding information by converting the original representation of the information into an alternative form known as ciphertext that only those with the key to that text can access.
FOIA Request: a request for information from the government using the Freedom of Information Act
Disclaimer: This transcript is auto-generated and has not been thoroughly reviewed for completeness or accuracy.
[00:00:00] Gus Herwitz: This is Tech Refactored. I'm your host, Gus Herwitz, the Menard Director of the Nebraska Governance and Technology Center at the University of Nebraska. Today we are discussing the topic of encrypted police communications. And before I begin, I want to mention that this topic was recommended to us by a listener.
That's right. We want to hear from you. If there's a topic you'd like us to discuss, go ahead and find the submit form on our website, or tweet us at unl_ngtc, or directly at me, your host at Gus Herwitz. With us to first, uh, provide some context for this issue of encrypted police uh, communications is Danielle Conrad.
Danielle is the executive director of the ACLU of Nebraska prior to her work with the ACLU. Danielle served for eight years in the Nebraska legislature and is intimately familiar with civil, civil liberties issues, uh, as well as the legislative process in the state. [00:01:00] Danielle, thank you for joining us.
[00:01:02] Danielle Conrad: Hey, guests. Hi. It's good to connect with you again, and thank you so much for the opportunity to join the podcast and talk about yet another cool issue. In those intersections between law and policy and free expression and privacy and technology. It's, it's just really, really cool to be here.
[00:01:21] Gus Herwitz: Yeah. And this time we're kind of flipping the, uh, privacy script around a little bit and talking about encrypting police communications, which keeps them private from, uh, those who might listen in.
And I, I guess I'd like to, uh, just, uh, start briefly with the idea. Police radio. I, I will say, as I was thinking about this episode, I, I went back to YouTube and did some searches for CAR 54. Where are you to see if I could find any good police radio clips? Can, can you just tell us a little bit about the historic use of radio by the police?
[00:01:54] Danielle Conrad: Sure. I could, I could definitely share some of. My perspectives, and your listeners may or may [00:02:00] not know this about me, but my dad was a deputy sheriff out in Seward County for well over 30 years. So I definitely remember him having his portable radio on when he pop in, uh, home for a cup of coffee and kind of hear the dispatch in the background.
And I remember a lot of friends and neighbors back home in Seward who listened to that police scanner for a lot of different reasons to kind of keep up with what was happening in the community. Kind of taking that familiar experience from my childhood and fast forward to where we are today. There's a lot of different cool new technologies that are available to make that information more accessible to more people.
So there's dedicated broadcasting sites, there's social media pages, there's whole media companies that have really worked to capture that information and make it more accessible and it continues to, you know, spark a lot of community interest. When you go and visit some of those social [00:03:00] media pages like Omaha Scanner, you can see, you know, literally thousands of people that are, are.
With that site to learn more about what's happening in their community.
[00:03:11] Gus Herwitz: Yeah. And historically, these radios have been basically unencrypted radios just like kind of a, a walkie talkie in, uh, recent years, I, I guess 20 ish years ago or so, we started to digitize these communications so that we could more efficiently use a spectrum.
But even then, uh, you could buy a scanner, radio and tune in to, and listen to the police frequencies and, uh, fire departments and city government and air traffic. And, uh, security radios and all, all this stuff, and get a sense of, uh, what was going on in, uh, the community. Which brings us to the idea of encrypted police radio.
Uh, the idea right there that it's kind of self encapsulating, but can you, you tell us what's going on with the use of encryption by the police in their radios? Sure.
[00:03:58] Danielle Conrad: So as the [00:04:00] technology has changed, so has the technology for the law enforcement side of things, and so what you're seeing, really what we're hearing a lot more about is kinda an emerging trend in Nebraska and beyond, where more law enforcement agencies are making access to their livestream or their police scanner, either significantly delayed and or less accessible.
generally by encrypting it. And so there was really a, a hot button issue that popped up in Omaha this summer where, uh, a lot of concerned community members started to hear rumbling that the Omaha Police Department was going to move to an encrypted option for their police scanner. And of course that raised a lot of red flags for community activists, for open government activists, for government watchdog activists.
And I think also kinda a lot of people's attention, you know, based on the, the really high level of discussion over the last summer, over the last year [00:05:00] about police accountability and transparency and police practices. And so, like I said before, Community members rely on this information for a lot of different reasons, but I think the key takeaway for us at the ACLU is that anytime the government is restricting access to information that's gonna raise red flags, less transparency.
It's almost never a good thing when it comes to how government is conduct business. And, and that's really kind of when it first popped up on our radar screen this summer
[00:05:31] Gus Herwitz: Or, or, uh, when it first, uh, you first overheard it on your scanner, we can say. Um, uh, so presumably the police, uh, and law enforcement haven't decided to, uh, start using these technologies for no reason or presumably not merely, uh, to frustrate people's ability to listen into their communications.
What are the, uh, reasons that have been given for the embrace of this?
[00:05:59] Danielle Conrad: Yeah, what, what [00:06:00] we've been hearing locally, and I, I think this mirrors what some other jurisdictions, um, beyond Nebraska have already, uh, kinda worked through in regards to their process. And I know Maylin will be able to, to weigh on a little bit later, but it seems that this move to less transparency in towards encryption is.
Generally grounded in, in kind of two primary arguments from the law enforcement perspective. The first being general privacy, that they want to be thoughtful and careful about, you know, a broad, widely disseminated kind of. Substantial amount of personally identifying information, think for crime victims or even social security numbers or otherwise that they might, that they might need to transmit back and forth when they're, they're conducting their business.
So I think that there's a fair amount of agreement across the political spectrum and from different stakeholders that. Everybody concerns is concerned about personal privacy and doesn't want necessarily there to be significant [00:07:00] intrusions, intrusions, and infringement there, and that there's probably a less evasive way to address some of those unique and more discreet concerns about personal privacy.
We see it pop up in body camera policies, for example, or having an alternative. Channel in place that allows for the communication of that very discrete type of information on encrypted basis that keeps everything else in the public
[00:07:23] Gus Herwitz: view. Right. So just to jump in, in the privacy context, one of the big discussions right now is the idea of the right to be forgotten and that you, you don't want something that happened to you online at some point in your past.
Follow. For the rest of your life and the police are very often there at the lowest and worst moments of your life. Sometimes it might might be due to your own conduct, it might be due to the conduct of others, but in either case, there's a strong argument from privacy advocates that, uh, that shouldn't be memorialized.
And if it is memorialized just in police [00:08:00] chatter, that that is a serious privacy concern.
[00:08:03] Danielle Conrad: Yeah, I think that's right. And I think, like I mentioned, I think a lot of people who are concerned about this issue actually can find a lot of common ground on that piece where there's kinda a work around a more kind of elegant approach to protecting personal privacy rather than just shutting up down communication.
So that's kind of the first bucket. The second bucket from a law enforcement perspective is, it's kind of a, an argument that, um, you know, there's. Smart criminals out there who are listening to the scanner traffic and maybe they're making great calls to throw officers, you know, off the trail or away from the scene of the crime.
And that's becoming, you know, I think an increasing concern for law enforcement that, you know, they'll show up at a scene and maybe somebody who's accused of wrongdoing will have the scanner app. And that definitely raises flags for, for them in terms of their ability to, to do their [00:09:00] job and, and keep everybody safe.
So again, I think that there's a fair amount of agreement from different stakeholders that, you know, when it comes to safety, there's again, I think some more discreet kind of middle ground approaches fruit. Maybe an undercover investigation or you know, those really exigent circumstances where like a SWAT team might need to be called in or you know, something very significant like that.
But when it comes the day to day kind of communications and operations of. Police dispatch. That's really what we're most concerned about and, and kinda looking at in Nebraska and beyond. And, and I think that public safety, that officer safety kinda argument really isn't as strong when you're talking about kind of the, the general dispatch and communications piece
[00:09:49] Gus Herwitz: And you, you have, uh, have touched on a couple of the civil liberties concerns, but are, are there any particular examples that you would [00:10:00] highlight that will help people understand why having access to this information from a civil liberties perspective may be important?
[00:10:08] Danielle Conrad: Uh, sure. I mean, I think that, you know, again, it kind of goes back to the fact that any time there's less transparency about government operations, about the public's business done with public dollars, that's gonna raise some concerns.
And it should, especially in a state like Nebraska, where we have such a proud and strong tradition of open. And I think you really need to raise your eyebrows and those red flags when the government's telling you as citizens what you need to know and when you get to know it, that that's just really turns kind of our, our whole conception of democracy kind of upside down the, the power and the information along with the people.
And I, I think that's really the, the angle that we're looking at here. , whether it is accountability, whether it is wanting to keep up with current [00:11:00] events, what no matter actually what an individual citizen's reasons might be for wanting to keep track on, on what's happening, On least dispatch channels, you know that, that information that, right.
That's. Done with our tax dollars in our name, in our community, and, and we have a right to know what's happening there for, you know, whatever reason you, you see that echoed in the statute books in Nebraska, right? Thinking about our, our public records law, our foil laws, our sunshine laws, where, you know, the, the legislature has been clear and the courts have been.
It doesn't really matter what the citizen's intent or impetus is for, you know, keeping a, a watchful eye on government. That information belongs to the people and our argument is
[00:11:45] Gus Herwitz: that's where it should stay. So you mention Nebraska Law. Let's, uh, finish up this introduction with just some discussion about what's going on in Nebraska.
What's the state of play with encrypted police communications in, uh, the state? Right. [00:12:00]
[00:12:01] Danielle Conrad: So from my understanding, uh, kind of when you look at the landscape in Nebraska, for example, in Lincoln, the Lincoln Police Department moved to a pretty significant level of encryption a few years ago, back in 2019, and they kind of offered up some middle ground kind of a work around or access for journalists and maybe a delayed feed for everybody else.
But then ultimately, Most of that information, as I, as I understand it, that has been kinda an interesting policy alternative that has been put forth by other jurisdictions as I understand it, kinda a special access for media. But again, while of course we arely committed to freedom of the press at the A C L U, I think it also raises really important questions because historically, The, the press doesn't, generally, the press isn't generally afforded a broader first amendment right than, than we are as citizens.
And so I think it's really [00:13:00] dangerous, again, when government entities start picking winners and losers and gets access to information. Information is power and I, I think it's information in its purest, most accessible form is the most powerful for the people. And I'd imagine that there's probably a fair.
Folks across the political spectrum that maybe wouldn't necessarily always trust the media to be the filter for that information when it comes out. Just like folks when always trust the government to be the filter for that information. So that's kinda a landscape look here. And then up in Omaha, these, these discussions have really just bubbled up this summer about whether or not OPD is gonna move to kinda an encrypted kind of scanner and kinda what that would mean and how that would look and when it would.
We don't have a whole lot of information right now whether or not Omaha is actually gonna move in that direction. But we have enough information that a lot of people are asking questions. That includes the A C L U, that includes private business owners, small [00:14:00] business owners, and community activists across, across the political spectrum.
So, I know you're gonna talk with Mailin to learn more about kinda the policy response and catch the law up maybe to these interesting questions of, uh, technology and, and privacy and expression and open government.
[00:14:16] Gus Herwitz: Uh, that's exactly right. We are, Thank you a Danielle for that, uh, wonderful introduction and we will be back, uh, after a brief.
Break with Mailyn Fidler, an expert on constitutional rights and intellectual property to discuss these issues, uh, in more detail.
[00:14:36] Lysandra Marquez: I'm Lysandra Marque, associate producer of Tech Refactored. I hope you're enjoying this episode over show. And, hey, do you have an idea for Tech Refactored? Is there some thony tech issue you'd love to hear us break down? Visit our website or tweet at us at UNL underscore NGTC to submit your ideas to the show.
And don't forget, the best way to help is [00:15:00] continue making content like this episode is word of mouth, so ask your friends if they have an idea too. Now, back to this episode of Tech Refactored.
[00:15:19] Gus Herwitz: Welcome back to Tech Refactored. Today we are discussing the use of encrypted radio networks by law enforcement. Joining us for the next part of our discussion is Malin Fiddler, an expert on constitutional rights and intellectual property. Malin served as the Tech and First Amendment fellow at the reporter's Committee for Freedom of the Press, and she was formerly an adjunct professor of law here at the University of Nebraska College of Law, where she is one of, uh, the Governance and Technology Centers faculty.
She has recently authored a piece about the growing use of encrypted communication by local police departments, and is going to talk to us a bit about some of the concerns that come up with these technologies. Let's, uh, [00:16:00] just start with a, a little bit of background. Can you tell us a bit about, uh, the police practices before the, uh, adoption of encrypted communications networks, and not just the police practices, but also how journalists and others, uh, would rely on or make use of these communications.
[00:16:20] Mailyn Fidler: Sure, so police and sometimes other first responders. So that kind of thing. Use radio traffic to communicate with one another.
This is a major source of information for journalists, and so journalists would monitor police, radio traffic to identify events of interest, especially to enable real time reporting. So they might hear a report and go out to the scene and report further. Live. So that's, that's a major use, but it's not just journalists.
Members of the public also rely on this information. So this could be as simple as tweeting out things that come over, uh, police, radio, or as complex as apps that source their information from these radio channels. A [00:17:00] citizen is a, an app that is not without some controversy, but it reports 911 incidents, fire incidents through push notifications to users in real.
[00:17:10] Gus Herwitz: So these, uh, applications I, uh, can imagine there's a combination of real time and non realtime applications, real time reporters monitoring what's happening so that they can hear some breaking news in Russia team there. But also, uh, recordings of discussions, police communications, or just logged police communications to go back and reconstruct things that have happened or, or report on days or weeks past, uh, sort of event.
[00:17:39] Mailyn Fidler: Both uses happen , but from a journalist's perspective, the live access is actually really important. That enables them to both get information to the public and be a source of information to the public, and also to serve as a real time watch dog on police actions.
[00:17:53] Gus Herwitz: Okay. What, what about the citizen and non journalist use of listening [00:18:00] to police communications?
Are there any, uh, notable examples, good or bad? I'm trying to understand. Uh, I, I should say, I, I used to have a whole lot of radios in my house. I still have an old police scanner somewhere, so I, I might be one of the people I'm about to refer to as, uh, potentially, uh, slightly, uh, weird people, um, are, are people who listen to.
Or make use of listening to these, uh, networks. Are, are we weird people? ?
[00:18:28] Mailyn Fidler: Uh, I don't know that I'm a good judge of that, but, uh, probably one of the weird people too. But there's a range of people that use these kinds of apps. So folks, um, who are in positions to need this kind of information quickly rely on these kinds of, apps.
[00:18:41] Gus Herwitz: Mm-hmm. Okay. So historically we've been able to, journalists and citizens have been able to just listen in to these communications because they've been unencrypted. And you can go out and buy a, Oh, I'm gonna say something so sad. You can go out and buy a radio from Radio Shack, or I guess Amazon now, and the. [00:19:00]
It will let you tune into these frequencies. Sometimes they need to be decoded, but uh, they're, they're not encrypted, so ordinary citizens can get access to them. Can you talk a bit about the transition to the use of encrypted networks?
[00:19:15] Mailyn Fidler: Absolutely. So, I wanna start with a little bit of an overview and then talk about sort of some specific drivers of this trend.
So, so generally, you know, guess and I, you and I are part of the sort of tech law community generally. We're pro encryption, so why are we talking about encryption with a bit of hesitation here. There's a, an issue sort of of balance between public access and right to know government transparency and these other things that I'm going to mention.
And so the sort of three key. Um, behind police desire to use encryption on these communications. The first is sort of highly sensitive operations, so things that might involve something like a SWAT team action. It might be good to keep members of the public, even journalists away given heightened security [00:20:00] concerns in some circumstances.
So that's sort of one driver of the, the push for encryption. Second, there are some real privacy concerns about information. Gets shared over police radios, and so that's another driver of the desire to adopt encryption on these communications. And third, there's some concerns about interference with police radio communications.
But notably, last summer during a lot of the police protests that were happening, there were reports of interference with police radio traffic. I'm a little skeptical about this one as an argument in part because that's interfering with that kind of police radio traffic is already a crime, so I don't know that we need sort of another layer on top of that, but that's, that's certainly one of the, the three drivers.
[00:20:42] Gus Herwitz: So I, I guess one thing that I'm wondering, and without having done any, looked at, going back to the previous question, So when you say, uh, interference, I, being a, a radio person and a communications lawyer myself, two different things come to mind. One is what we would refer to as, uh, jamming. So [00:21:00] using spectrum to block police communications.
And then the other, uh, would be hopping on the frequencies and pretending to be a dispatcher or just hopping on the frequencies and having a conversation. I, uh, kind of taking a joy ride on the police radio network. Do, do you know if either of those are particular concerns or have there been notable, documented examples of either of them?
[00:21:22] Mailyn Fidler: Yeah, so the reports that I've seen have been primarily of hopping on the frequencies and broadcasting other information, other reports of folks broadcasting, protest songs, that kind of thing over those frequencies, which does it, it interferes with the ability of the police to use those frequencies.
Police purposes. I believe there's been instances of jamming of the first kind that you talked about, but I don't think those happened last summer. So,
[00:21:49] Gus Herwitz: so let, let's take the good lawyer approach here and say we've got, uh, both sides of the v, the plaintiffs and the defendants, the arguments for, and the arguments against.
Can you, [00:22:00] uh, uh, let's start just by talking about the arguments in favor of the use of police encryption. How, how would we lay those out?
[00:22:08] Mailyn Fidler: Sure. So encryption provides a technical level of protection for information that doesn't exist without it. As I mentioned with the three drivers there, there are some legitimate concerns about security and privacy warrant, you know, taking some of this information off of public airwaves.
That said, I don't think those arguments. Work for sort of a wholesale encryption of all information, um, that goes over police radio
[00:22:30] Gus Herwitz: channels. It, it sounds like the arguments, uh, in favor of the use of, uh, encryption here are very much policy driven, less constitutional, uh, sort of arguments, uh, that we might expect about, uh, free speech.
It, it's my understanding that the, the legal arguments are more on the, this causes legal constitutional problems and I expect there's some policy, uh, issues there. Um, so can. Us to the arguments against the use of, uh, encryption.
[00:22:59] Mailyn Fidler: [00:23:00] Sure. So I'll start with the, the constitutional arguments, and I will say upfront, it's not a slam dunk constitutional argument.
So I'll walk through sort of the case for a first amendment, excuse me, a first amendment right of access, and then talk about why that might not work. So the first question is, does the public or does or do journalists have a right of access to this information? You know, could they suit to enforce access to the information that's flowing over encrypted radio channels?
The key case here, sort of on the pro side would be Richmond Newspapers versus Virginia. This was a case that held that there was, uh, a right for the public in the press to attend criminal trials, and they decided this right on sort of a two-pronged basis. The first was that criminal trials had been historically open to the public and to the press, and the second was that the attendance of the public and the press had a significant positive effect in sort of the functioning of criminal trials and.
If you apply those to the, the police radio context, you could see pretty strong arguments. You know, this is something that's [00:24:00] been historically open to both the press and the public, as we've talked about, and there's a significant positive role of having the press and the public there as a watch dog.
That said, this is not an absolute right. And so this kind of right of access can be overcome by other important interests in the criminal context. It could be fair trial interests, privacy interests are also something that can overcome this interest. And then the major problem is that courts have really hesitated to expand this line of, uh, thinking beyond the courtroom.
So there, there's not a lot we can point to beyond sort of court access that applies this.
[00:24:36] Gus Herwitz: And how, how does this play out? I, I expect there isn't any litigation touch on this, but it, it seems to me there's a, uh, a distinct difference between observing a criminal trial and being able to listen in on real time communications.
What are some of the effects, uh, of having the. In their, in the courtroom, observing a trial in real [00:25:00] time. And how might those be similar or different from the police feeling that, uh, they're being listened to with their communications in real time?
[00:25:09] Mailyn Fidler: So in the, in the criminal case, in the criminal context, or at least in the, in the judicial context, we can point to sort of, you know, the right to an impartial trial in front of one's peers, the.
Press and the public play an important function in securing both of those rights. So that sort of dynamic is not there necessarily on the police side. What was the second part of the question? Gu .
[00:25:34] Gus Herwitz: Uh, re really driving or diving into the distinction between both real time and non real time listening in on the communications.
And the less I get that, that's really what I want to try and get into. Yeah.
[00:25:48] Mailyn Fidler: And. I was going to bring up Hoens, I'm not sure if that's how you say it, versus K Q E D to talk about, uh, you know, not all kinds of information are subject to [00:26:00] this kind of real time right of access. So in that case, the court ruled that, you know, the press.
Did not have access to walk into a jail and kind of record information and what was going on in real time, in part because the, the public at large didn't have that. Right. And so there's this, it raises this other question of how do we decide whether the press gets access to encrypted police radio communications?
Or how does the public get access to those same communications? There's a question there
[00:26:25] Gus Herwitz: as well. Yeah. That, that, that's such a great point. And I, I, I love the point because, uh, my, my sense is in these discussions in First Amendment to debate, there's a long question of. Does the press clause apply to the press as an institution or the press as a technology that anyone can use.
And do you have a sense of, are there interesting contours to the, the press as an institution? Do they have special access to these communications versus does anyone who has access to the radio to be able to listen in? Do they have [00:27:00] similar, should they have more or less, uh, rights than the institutional press.
[00:27:04] Mailyn Fidler: Yeah, so you're absolutely right that this is a long standing and huge debate in the First Amendment law, and it's one that's being, I think, challenged a lot right now, both from a technological perspective and just from a, a societal perspective. So there's been a lot of debate about sort of citizen journalists in protest situations who might be documenting protests as somebody with a cell phone videotaping something subject to exempt.
And curfew laws that are there for journalists. And, you know, this kind of distinction, So this, this raises the same kind of question. What we're seeing so far in terms of what localities are doing is we're seeing sort of a strong trend to if, if they grant any kind of exception or access to the encrypted communications, it's to journalists only.
[00:27:47] Gus Herwitz: And how are they implementing that?
[00:27:49] Mailyn Fidler: So there's a, a couple ways that they're, they're doing it. One option that we've seen some localities adopt is that they grant special decryption [00:28:00] licenses to journalists. So this has a couple of implications. First, connecting back to what we just talked about, who counts as a journalist and who can apply for, and who can be granted these kinds of licenses so that that raises that whole press versus public issue.
The second issue, It's not necessarily an easy thing to get a decryption license. These usually come with hefty fees, sometimes additional insurance requirements. My favorite is, I, I think it's Denver's sort of decry license policy requires the holder of the decryption license to purchase additional cyber security incident insurance, which is a, a huge cost on top of the cost of the equipment for the decryption.
So that's, part of how they do it, and then another way that they're, they're doing it sort of a hybrid model where we're seeing police use different radio channels for different kinds of information. So you know that that kind of heightened security information or private information about individuals might go over an encrypted channel and other information might flow over an unencrypted channel.[00:29:00]
I think, you know, this model has some promise, but it also has peril, which is that there's a temptation to just shove more and more over the encrypted channel and the sort of unencrypted channel falls out of use even though it's nominally there.
[00:29:14] Gus Herwitz: And I expect there, we would then see a lot of reliance on FOIA style requests to get access to a, after the fact, non real time recordings of the encrypted discussions to see what was there.
And I, I can imagine a lot of discussion. Well about comparing this to police body cameras and decisions about when to turn them on, when to turn them, not turn them off. So a whole lot fascinating there. I, uh, I have to ask on the, um, decryption license, how that's actually implemented are, are journalists who get these effectively going out and buying specially permitted police radios, that they are then able to basically be like a police officer, [00:30:00] uh, with a decrypting police radio able to use.
[00:30:04] Mailyn Fidler: That's my understanding of how, at least, you know, the, not, not all localities are doing it this, but the localities that are doing it, That's my understanding is that they get a special set of equipment that they
[00:30:13] Gus Herwitz: have to pay for seem, uh, I'm just, my mind is boggled by this. It seems like it would be so much easier to, uh, just have a, a radio in the police station that streams over the internet with an encrypted login.
Mm-hmm. , and you could just give. People with the quote decryption license, , uh, a login to the secure streaming portal. But I, I guess I, I am not in the business of building marketing, uh, uh, and selling, uh, encrypted police communications systems. What do I know? I'm just a, a humble law professor. , uh, There's a, another issue in the background here.
Uh, you touched on this. Uh, there's a massive debate about encryption outside of the police radio context, and [00:31:00] you, you've already framed this up that this is kind of going in a different direction. We're arguing about access to encrypted police communications as opposed to police or government access to encrypted civilian communications.
Um, do you have thoughts on either. How this relates to the other encryption debate or other curious elements of this distinction? Yeah, in
[00:31:24] Mailyn Fidler: my mind, you know, it involves the same technology, but the contours of the debate I think should actually be a lot different. Cuz what we're talking about here is really, uh, government's responsibility to its citizens.
And that's not so much a contour of the debate when you're talking about, you know, a citizen's right to use technology to protect his or her own data. So, I think the, the conversation about this actually gets caught up a little bit too much in encryption and, and not enough in, you know, real considered discussions about what information, uh, The government owes, owes to people.
[00:31:58] Gus Herwitz: Mm-hmm. [00:32:00] So how effective, uh, are these encryption systems? What are either, uh, technical or policy workarounds that might exist either for access to be granted? We've already touched on that, or access to be acquired by a nefarious or perhaps a, uh, white hat? Well intending individual.
[00:32:22] Mailyn Fidler: Absolutely. So I'm not aware of any hacking incidents yet of encrypted police radio channels.
I think it's probably just a matter of time though as, uh, we all know even encrypted systems aren't feel safe, especially if they're sort of. And Gus correct me if I'm going off, off the deep end here, but especially if the encryption systems are sort of standard commercial systems, there's gonna be, if you get into one, there's gonna be an opportunity to get into more of them.
It's not gonna be individualized, uh, for every, you know, local police department. I think it will also change the kind of adversary that police departments are dealing with. So it's not going to be [00:33:00] your protestor, it's going to be folks who have different. Possibly more damaging agendas, either financially or otherwise.
You know, you could, you could anticipate ransomware attacks on, on police radio encryption channels, which would be. Much harder to deal with than someone blasting a protest song over the, the radio.
[00:33:19] Gus Herwitz: And I, I guess related to that, um, how expensive are these radio systems? are, are these, uh, encrypted radio systems 10 times more expensive than older radio systems, or are they effectively Everything's digital now. It doesn't cost departments anything to upgrade.
[00:33:37] Mailyn Fidler: My understanding is they're quite pricey. I don't know whether that is a result of just police vendor market dynamics and whether they actually, you know, could be a lot cheaper. I do know that decryption licenses for journalists, at least in the sort of documentation that I've seen runs, you know, 5,000 and above.
So if the, if that's the price point for journalists, I imagine these [00:34:00] systems are quite expensive and that's also the argument. Police departments raise against the hybrid model. So they're saying we, we can't adopt the hybrid model because having two digital radio systems is cost prohibitive.
[00:34:13] Gus Herwitz: I, I would love to have a better sense of, I, I, I'm willing to bet that a lot of this equipment has military grade encryption built in there, and, uh, so does your web browser and so does the encryption algorithm that every uh, uh, second or third year, uh, computer science student at some point needs to write for a class.
I would, uh, uh, love to know more about the marketing, uh, and the actual, uh, costs here.
[00:34:38] Mailyn Fidler: Um, and that's actually something if I, if I can jump in real quick. This is a bigger trend that we're seeing is sort of local police reliance on big vendors that make and sell technology directly to the police. And this raises a, a range of other issues where private industry is setting sort of technological defaults.
Can then tend to become legal defaults without [00:35:00] a lot of considerations. So I think that's another thing to, to watch with
[00:35:03] Gus Herwitz: this process. Yeah. So talking about this becoming the default or, uh, the, the pressures towards this transition, how have governments, police departments responded to pushback against this and in particular, responses to public records, uh, requests either through communications, through these systems, or about them?
Mm.
[00:35:25] Mailyn Fidler: I've seen sort of two, two routes pushing back against this process. I think the one route is to sort of lobby your local police department and say, Hey, this isn't so great. For these reasons that I have not seen be super successful. Usually once police departments have made the shift, they're not, they're not eager to a shift back.
The other route that I've seen is a legislative route, and that has had a little bit more traction. We've seen Colorado just passed a bill. That required journalist access to encrypted police radio [00:36:00] technologies. So that kind of state level standard setting I think is a good option for, for pushing back.
[00:36:03] Gus Herwitz: Do, do you have any sense of any empirical basis or analysis that any legislatures or police departments have undertaken when thinking about this? I, when, when? My sense from the discussion is this is very much a, a technology driven, Hey, we have this new thing, uh, we have some legitimate concerns, uh, that suggest we should be using it.
Uh, we have, we recognize that there's some problems with this technology. We'll try to figure out how to make reasonable accommodations to the extent the technology's allowed, but that, that. Uh, really admit of the question, is this a problem that needs to be solved?
[00:36:44] Mailyn Fidler: Yeah. I think you're, you're right that this is a technology driven response.
I think, um, you know, based on some of the things that I've, I've read, there's a lot of police radio systems that are just naturally aging out right about now, and [00:37:00] there's encrypted products on the market now. And so I think that's one of the things that's driving it. There's another. Possibility of something that's driving it, which is sort of state level, Department of Justice policy changes.
So we saw this happen in California where the, I believe it was the California Department of Justice issued a statement saying all police departments should transition to encrypted. Radio channels, unclear sort of why, like the basis for this decision. And there are journalists in California who are working to request and through the public records process the records that led to this decision.
And that has been a battle in and of itself. Not to even mention requests for. Records that were encrypted through, through these channels. Uh, it's a battle just to find the, the regular ones.
[00:37:46] Gus Herwitz: This has been, uh, a fascinating discussion and I, I think that last bit, it being technology driven and the kind of cat and mouse game.
I, I love the idea that reporters are using FOIA to try and get [00:38:00] at the reasons for why this technology that interferes. Reporters being able to access these communications. Uh, uh, it's a, a fascinating dynamic there. Any, uh, last thoughts that you want to, would like to leave us with? So this
[00:38:13] Mailyn Fidler: is a little hokey, but one of my favorite stories about my grandfather is that he was part of the Volunteer fire brigade in his small town back in the day.
So when the fire bell would ring, they would ride on their bicycles to the fire truck and go, you know, Out to the fire. And there's something about that kind of level of direct responsiveness that I feel like Unencrypted Police Radio embodies. There's this sort of sense of direct access to your community and your government.
So I guess I would, I would close on that note in that spirit.
[00:38:40] Gus Herwitz: Well, that's a, uh, wonderful note to, uh, close on. And, uh, thank you Mailyn and uh, thank you listeners for joining. I have been your host, Gus Herwitz. This has been Tech Refactored. If you want to learn more about what we're doing here at the Nebraska Governance and Technology Center, or to submit an idea for a [00:39:00] future episode reminder, this episode topic was submitted by a listener.
You can go to our website at ngtc.unl.edu, or you can follow us on Twitter at UNL_NGTC. If you had enjoyed this show, don't forget to leave us a rating and review wherever you listen to your podcasts. Our show is produced by Elsbeth Magilton and Lysandra Marquez and Colin McCarthy created and recorded our theme music.
Our research associates, Neil Rutledge, provided topic and substantive development for this episode. This podcast is part of the Menard Governance and Technology programming. Until next time, keep those communications secure.[00:40:00]