UPDATE: By a 6-1 vote, the Palo Alto City Council voted to retain encrypted police radio on April 4. Read the full story.
As Palo Alto police Chief Robert Jonsen continues to advocate for keeping all police radio communication closed to the public, he is getting assistance from a regional agency charged with coordination between cities during emergencies.
Eric Nickel, who served as Palo Alto fire chief between October 2012 and January 2019 and is now executive director the Silicon Valley Regional Interoperability Authority (SVRIA), last week submitted a memo to the city that makes a case for retaining radio encryption, a policy that Jonsen adopted in January 2021 and that the City Council was scheduled to discuss on Monday night.
The authority includes as its members Santa Clara County as well as cities, special districts and college districts throughout the county. Its mission is to ensure interoperable communication between the public safety and public service agencies within the county during an emergency.
Like other agencies throughout the county, Palo Alto adopted the encryption policy after the state Department of Justice issued a memo in October 2020 ordering agencies to protect personal identifiable information (PII) such as Social Security numbers and criminal records. The memo gave agencies the option of either fully encrypting communications or creating policies that keep most communication unencrypted but transmitting personal identifiable information by secure methods.
Since abruptly adopting full encryption in January 2021, Palo Alto police have consistently rebuffed the council's attempts to revisit the policy and consider alternatives, which they claim are infeasible. The policy ended a practice that has been in place for more than 70 years in which journalists and police watchdogs have monitored police activities through scanners, a key component of covering breaking news. Most agencies in the county have followed Palo Alto's lead and have switched to encryption, though the California Highway Patrol and the San Jose-Evergreen Community College District have created new policies that comply with the DOJ guidance.
The March 31 memo from Nickel lays out several options for what would happen if one of the agencies responding to a major incident does not use encrypted radios while others are. In such an incident, the memo notes, a dispatcher or field officer would have to switch the radio to an encrypted talk group before they can be patched into the group.
The option, Nickel argues, creates more work for dispatchers and "adds extra steps to the public safety staff entering dynamic emergency situations." The memo argues that the goal of the authority is to "minimize public safety officials from having to change talkgroups on their radios during critical incidents."
"It is unreasonable to expect already short-staffed and overworked dispatcher centers to take on extra work to switch field radios from unencrypted to encrypted talkgroups, and then coordinate a patch into the encrypted interoperable talkgroup in an emerging and out-of-control incident," Nickel wrote.
Another alternative would be removing unencrypted agencies from regional talkgroups altogether, he wrote.
"Encrypted regional talkgroups would be removed from the agency's radios that are unencrypted." Nickel wrote. "Unencrypted radios would not have any regional or interoperable law enforcement talkgroups, and the operators would have limited communication capabilities with other law enforcement officials outside their home agency."
If the SVRIA board chooses to take this option, Nickel wrote, Palo Alto could lose "most interoperable communication access to law enforcement mutual aid radios authorized to operate on the encrypted regional interoperability talkgroups."
Palo Alto could also lose most interoperable communication access to law enforcement mutual aid radios authorized to operate on the encrypted regional interoperability talkgroups.
Nickel also noted that his agency is "not willing to take one member's non-compliance liability," and notes that as a condition of Palo Alto operating unencrypted on the regional communication system, it would take on the liability for the authority. This, he wrote, is "likely unacceptable to Palo Alto."
Nickel, who worked with various public agencies on compliance with the DOJ memo, expressed similar concerns in 2021, when this news organization interviewed him about the recent guidance from the state agency. He suggested at the time that if some agencies keep their radio communication unencrypted, it would hinder their ability to communicate with other agencies during incidents requiring mutual aid.
"If some are encrypted and some are not, there are a lot of interoperability features that we can't use," Nickel said in April 2021.
The Palo Alto Police Department decided to encrypt its radio communications about a month before it made the move, though it didn't publicly announce the new policy until just before the Jan. 5 implementation.
Jonsen notified the DOJ about the change in a Dec. 10, 2020, letter.
"We will, upon radio frequency reprogramming, encrypt our primary law enforcement channel to have fully encrypted channels for all of our operations," Jonsen wrote to the DOJ.
The policy faced some public backlash, with Mayor Pat Burt and council members Tom DuBois and Greer Stone all suggesting that the city reconsider encryption. In March 2021, Jonsen sent another letter to the DOJ asking if the city can revert to unencrypted communication. He did not, however, propose in the letter any policies that would keep personal information from being broadcasted to the public. Rather, his letter explicitly stated that the move would "result in PII information being broadcast on a non-encrypted channel."
The DOJ responded in July with a letter prohibiting the city from making moves that would result in PII being broadcast on a non-encrypted channel.