Law in the Internet Society
Privacy and the Police

Earlier this week, the New York Police Department announced a five-year, $500 million effort to transition to an encrypted radio communications system. This encoded system, which will effectively shield police communications from public monitoring, is just one of many similar programs announced by police departments across the country, who are likewise shifting their communications from publicly accessible airwaves to private transmissions. In justifying the NYPD’s decision to encrypt its transmissions, Mayor Eric Adams explains that the goal is to ensure no “bad guys” have access to police communications, which he implied were being used to help criminals “one-up” the NYPD and hinder policing efforts. In actuality, the scenario that Mr. Adams references is rare: in the two years that the department has been able to accurately track fake calls, only 58 instances have been recorded. In truth, the department’s publicly accessible transmissions have mainly been monitored by reporters and neighborhood groups, who have legally observed police transmissions in order to ensure police accountability and remain updated on crime within the city limits. Critics of the proposed system upgrade have proposed a number of options to ensure that, at least to some extent, police communications may continue to be monitored, even with the implementation of encryption. This paper seeks to examine two of these proposals and their potential implications, as well as provide improvements to them that may better protect civilians’ monitoring capabilities should they be adopted.

Rights to Communications Privacy

Before examining potential solutions, however, it seems important to acknowledge and resolve an expected argument against citizens’ ability to access public safety personnel’s real time communications: if organizations are generally granted a constitutional right to privacy in their communications, why should this right not similarly apply to the police? In truth, the answer lies in the fact that on-duty police officers are neither theoretically nor practically treated as private citizens or members of a private organization in nearly any other facet of the law. For example, in addition to the due process rights granted to private citizens during criminal legal proceedings, officers in fifteen states have a special, additional bill of rights relating to any prosecution they may face relating to their duties. Further, unlike private citizens and organizations, police generally benefit from enhanced protection under the doctrine of qualified immunity. Legally and practically, then, public safety officials have themselves become a special class of citizens requiring a specialized set of rights given the nature of their occupations; in short, police are not private citizens before the law. They thus should not be entitled to all of the rights afforded to private citizens or organizations, especially when considering the advanced protections they have at their disposal, and the power over private citizens that these specialized rights afford them.

Obviously. This entirely misses the point I was making, however. If: (1) citizens and organizations have the right to use strong end-to-end encrypted communications, and will do so, and (2) there are compelling reasons why public safety personnel should have communications security in their work at least as strong as that which every citizen has a right to use, and (3) there are compelling reasons why you would certainly not want paramilitaries of your own operating insecure communications while those parties engaged in criminal violence communicated securely, which they have a constitutional right to do, what is the weight of the public's right to know (and see e.g. Houchins v. KQED, 438 US 1) that could possibly force insecure communications on the police?

Broadcast Delay

Some opponents of the NYPD’s current encryption plans have proposed that, in lieu of a complete encryption of police communications, transmissions be released to the public upon a slight time delay. This proposal has precedent, police departments in Boston and Chicago have implemented 15- and 30-minute delays, respectively, before police communications are made available to the public. Proponents of the time-delay argue that it will be more transparent than complete encryption and privatization of police transmissions, while allowing the department time to censor or remove sensitive material communicated in real time. At first glance, the idea seems tempting; it will, after all, allow civilians at least some access to police transmissions while allowing the department to still meet its alleged goal of protecting the safety and privacy of officers, victims, and witnesses. However, potential champions of the proposal should take heed of one very worrisome implication: under this proposal, the NYPD will have discretion over what information may be censored before it reaches the public, opening the floodgates for police interference that will render one of the main purposes of police monitoring, accountability, impossible. One potential improvement to the broadcast delay proposal could be third-party censorship. Instead of allowing the department to determine for itself which articles of its dirty laundry to air, a civilian board should be allowed access to police communications in real time and have the full authority to determine what information in the transmission, if any, may require censoring for the safety of potential victims and witnesses.

Phone Application for Accredited Reporters

Another potential amendment to the proposed encryption system is a phone application that grants access to the otherwise private transmissions for accredited reporters. While communications between officers would remain off-limits to civilians and monitoring groups, credentialed journalists would have access to the transmissions in real time through a smartphone app. Of course, this concept presents its own complications; it would essentially allow officers to determine who may listen to transmissions, and runs the risk of turning journalists into mouthpieces for the NYPD, an issue which has become an increasing source of worry for monitoring groups. As with broadcast delays, the inclusion of monitoring groups and civilian boards may offer at least some retention of civilians’ ability to observe the police. The usage of civilian boards to determine who gets access to the app, as well as the inclusion of not just accredited journalists but also members of monitoring groups and civilians pending an application process, may offer a modest amount of harmony between the interests of the NYPD and those of non-policing parties.


While a continued public broadcasting of police transmissions is obviously ideal, a pragmatic approach to the NYPD’s proposed encryption system may be necessary to ensure civilians and oversight groups maintain the ability to keep a watchful eye over an historically corrupt department. While broadcast delays and access to transmission for accredited reporters are two potential compromises, they run their own risks and require, at minimum, amendment in order to be feasible, long-term answers. Overall, the continued inclusion of non-policing parties is tantamount to ensuring that the New York police department, for the small price of 500 million tax dollars, are unable to purchase complete obscurity from the watchful eye of its citizenry.

If this is about making good public policy, why is there no overall summary of policy objectives and assessment of trade-offs? If this is about what police can be required to do by law regardless of whether it is good public policy, then the question I asked originally still must have an answer that is satisfying in order for us to conclude that there are any legal requirements at all. It is still the primary road to improvement here to come up with something, for there is still no argument whatever on that point.


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r4 - 21 Jan 2024 - 18:32:33 - EbenMoglen
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