Facing resistance from the Palo Alto Police Department, the City Council reluctantly agreed early Tuesday morning to keep police radio communication encrypted and inaccessible to the media and the public.
During a long discussion that stretched well past midnight, council members repeatedly acknowledged that police Chief Robert Jonsen's abrupt move in January 2021 to encrypt radio communications conflicts with the public's right to know about what's happening in the community and hinders the media's ability to cover breaking news. They also largely supported a bill proposed by state Sen. Josh Becker that would require law enforcement agencies to make radio communications accessible while protecting personally identifiable information.
But by the end of the debate, only council member Greer Stone favored returning the department's radio to an unencrypted channel while also developing policies and practices to prevent the police from broadcasting personal information, as required by a recent directive by the state Department of Justice. While most of his colleagues shared his sentiment about the declining transparency in the department, they opted to keep the policy in place out of concern that making the switch to unencrypted radio would make it more difficult for the city to communicate with other law enforcement during incidents involving mutual aid.
Instead, council members pinned their hopes for restoring transparency in the Police Department on an unproven tool: an online map that would give near real-time information about police incidents. City Manager Ed Shikada and Jonsen said they will work with the police unions to refine the tool, even as they warned that officers within the department are concerned that providing the specific locations of incidents to the public in real time would create safety issues.
Like most other jurisdictions in Santa Clara County, Palo Alto adopted encryption in response to an October 2020 memo from the state Department of Justice, which directed all law enforcement agencies to take steps to protect personal identifiable information such as Social Security numbers and criminal records.
The memo gave law enforcement agencies two options for compliance: encrypt all radio communications or adopt policies that protect personal identifiable information while keeping all other radio communications unencrypted. In response, the California Highway Patrol adopted a policy of not transmitting the name of an individual in conjunction with other personal identifiable information over its unencrypted radio. If that addition is necessary, a state trooper transmits it using a computer in their vehicle or through other means.
Palo Alto abruptly switched to full encryption and in doing so took away the ability of the media and other members of the public to monitor police activities through scanners — a practice that has been central to coverage of breaking news for at least 70 years.
Stone argued that Jonsen's recommendation to retain the encryption policy is "unacceptable."
"I think it's absolutely critical that we're trying to restore that faith in police, especially given such a large breakdown in trust and faith in law enforcement institutions across the country in the last several years," he said. "I think this issue is far more important than ever before and really does require transparency.
Stone was one of several council members, along with Mayor Pat Burt and council member Tom DuBois, who have expressed reservations over the past year about the city's move to encrypted radio. On Monday, however, both Burt and DuBois declined to follow Stone's lead and instead favored exploring other technological solutions that would allow the media to stay informed about police activities.
The most promising solution, they argued, is an online map that the city unveiled last year, which gives basic information about police incidents. Because the map doesn't describe the incidents or display them until after they occur, it has been characterized as functionally useless for reporters trying to cover news by two newspaper publishers who testified in front of the council Monday, including the Palo Alto Weekly's Bill Johnson. In addition, the map offers only approximate locations of the incidents, making it all but impossible for the media to report with accuracy.
Most council members agreed that if the map tool were improved so that it could provide nearly real-time information as well as more exact location information, it could be an effective alternative to radio communications.
Local media publishers, meanwhile, pressed the council to restore unencrypted radio communications. Johnson, CEO of Embarcadero Media, which publishes the Palo Alto Weekly, and Dave Price, publisher of Palo Alto Daily Post, both described the critical role that listening to the police scanner plays in the news-gathering process.
Johnson said one of the chief benefits of having journalists listen in on police radio communications is that it allows them to quell rumors that are spreading on social media and prevent unnecessary panic. He cited one incident in 2018 in which Palo Alto High School was locked down because someone called the police to report a planned shooting — an incident that was later deemed to be a hoax. Another high-profile incident occurred in 2019, when a suspected bank robber entered and ran through Paly campus before being captured by the police.
In both cases, parents of students and other residents relied on Palo Alto Online to learn what was happening.
"We're able to provide that after having vetted that information and having some of the benefit of having listened to the police radio," Johnson said. "That's an example of a public service being performed not for use later in the newspaper but for the immediate goal of quelling rumors, making sure real-time information is getting to people and you don't have anxiety, panic where it's not needed in the community."
Price emphasized the value that real-time radio communications play in covering breaking news such as floods and other severe weather events. Reporters monitor the scanner to learn where accidents are occurring and then use the information to get to the scene and report on the conditions. And during major crimes, it's important for a reporter to get to the incident so that they can talk to witnesses, something that cannot be done if they have to wait until the police put out a press release to learn about breaking news.
Price called the city's move toward encryption a "First Amendment issue."
"This is an example of something that traditionally has been available to the public since the late 1940s and now is being taken away," Price said. "It's a great concern."
The two publishers pushed back against arguments that Jonsen had articulated in a recent memo suggesting that switching away from encryption is technically infeasible. Price noted that two neighboring jurisdictions that Palo Alto regularly interacts with — Menlo Park and East Palo Alto — both use unencrypted radio communications.
Though Jonsen has repeatedly opposed getting away from encryption, he acknowledged on Monday that the department has a few other alternatives. These include switching to the CHP model or following the lead of Roseville, which broadcasts all personal identifiable information on an encrypted channel while providing basic information about police activity on the unencrypted one. This, however, would require the city to have a dedicated dispatcher broadcasting on the unencrypted channel.
"We still have an unencrypted channel available to us," Jonsen said. "The Roseville model is a possibility. We probably have to do an impact analysis on how to do that with the resources we have, but we could do that."
A major concern for both Jonsen and the council is interoperability. Palo Alto is a member of the Silicon Valley Regional Interoperability Authority, a regional agency that is responsible for coordinating communication between law enforcement agencies throughout the county. On March 31, agency Executive Director Eric Nickel issued a memo warning that if Palo Alto were to switch to unencrypted radios, it would set up a "demanding situation for dispatchers, field personnel, and contact compliance." Specifically, it would require Palo Alto responders and dispatchers to take the extra step of switching to encrypted mode before they are patched into an encrypted "talkgroup" with other agencies.
Given the concerns about interoperability, DuBois said he favors the online map option rather than a return to unencrypted radios.
"I think we need to change the delay to not when it's over but when it's in progress," DuBois said. "I think we need to show the precise location."
Burt also favored an improved streaming service, though he was open to delaying the information by up to 15 minutes after police expressed reservations about revealing the information in real time. Assistant Chief Andrew Binder said that when the city was putting the online map together, officers expressed reservations about their movements being "more accessible and more easily tracked" on an online map than over previously unencrypted radio.
Though Burt had acknowledged the inherent tension between the DOJ directive and the First Amendment right to a free press, he ultimately refrained from specifying how much delay should be allowed before an event is posted on the map, leaving the issue for the Police Department to decide in consultation with its union.
The decision rankled Price, who suggested that the tool proposed by the council would be useless if the information is delayed. Several council members also suggested that the city should be considering the needs of the map's users — and not just the police union — as it develops the tool.
"If it doesn't meet their needs, then we haven't fulfilled the transparency part of it and that's the whole point," council member Eric Filseth said.
The council voted 6-1, with Stone dissenting, to retain encryption.