Police Are Increasingly Encrypting Their Radios to Block Scrutiny by Journalists

In Aurora, Colorado, in 2016 and then in Denver in 2019, police radio transmissions went silent. Many journalists, accustomed to using newsroom scanners for monitoring police radio communications to identify newsworthy events, found themselves suddenly disconnected from crucial updates on events jeopardizing public safety, impeding their ability to report promptly.

“Like law enforcement, broadcasters play a vital role in protecting the public, by distributing vital information to a mass audience, quickly. Broadcasters have responsibly utilized law enforcement radio communications for years,” Justin Sasso, CEO of the Colorado Broadcasters Association told Truthout. “There are no examples of broadcaster access resulting in harm to an officer or victim. However, since broadcast journalists and newsrooms have been cut off from law enforcement radios there are multiple incidents of communities not learning about active shooters, wildfires and matters of public safety in a timely manner.”

According to the Colorado Freedom of Information Coalition, by May 2021, more than 30 law enforcement agencies in the state had encrypted their radio transmissions. Although journalists have the right to request police radio transmissions under the Colorado Criminal Justice Records Act, these records may be withheld or redacted.

Encrypting police radio transmissions has become increasingly common nationwide. In fact, the Radio Television Digital News Association (RTDNA), the largest professional organization dedicated solely to broadcast and digital journalism, has said that radio encryption is the foremost concern among its members. “[T]he consequences of encryption prevent the public from accessing information about the activities of police in real-time. These communications provide individuals and newsrooms with essential updates on issues happening in their communities such as violent crime, hazardous conditions or officer-involved shootings,” Dan Shelley, the president and CEO of RTDNA, wrote in January 2023. “The move to encrypt police scanner communications puts the public — and the newsrooms that serve them by seeking and reporting the truth — at risk.”

Press freedom advocates say that this surge in encryption can be traced back to the heightened scrutiny and demand for police accountability spurred by the Black Lives Matter (BLM) movement in 2020. Following the BLM protests in 2020, during which citizens monitored police scanners and documented racist remarks made by law enforcement over radio frequencies, police departments nationwide introduced encryption protocols for routine police communications.

“In 2020 we had text messages from police that became public record showing they were only enforcing curfew against protesters — no one else. This is yet another moment where police communications reveal their intent to attack protests and harm anyone who isn’t of the ruling class,” Z Williams, director of client support and operations at the Denver-based nonprofit Bread and Roses Legal Center, told Truthout.

“Police communications demonstrated that the intent during the entire BLM uprising in 2020 was to be as violent as possible. They want to hide these communications now to avoid future lawsuits. There is no other justification,” Williams said.

Colorado Legislators Fall Short in Increasing Police Transparency

In response to this nationwide trend of police departments adopting encrypted radio transmissions, in tandem with the criticism of broadcasters in the state, Colorado state lawmakers introduced a bill aimed at upholding public access to information.

In 2021, Colorado passed HB 21-1250, which mandates that governmental entities that employ radio encryption draft journalist access policies in “collaboration with Colorado-based media outlets.” However, lacking enforcement measures, no Colorado law enforcement agency has yet drafted the required “communications access policy” in accordance with the law.

In fact, in response to 59 public record requests sent to various police departments across Colorado, only eight police departments — the Aurora Police Department, the Boulder Police Department, the Broomfield Police Department, the Colorado Springs Police Department, the Denver Police Department, the Estes Park Police Department, Fort Collins Police Services and the Trinidad Police Department — provided responsive records. Of those, only five departments released their media access agreements.

Of those policies, all included indemnification clauses necessitating that a media organization compensate the police departments for any claims, damages, liabilities, losses and expenses, whether direct, indirect or consequential, arising from or as a result of the signed agreement. Journalists have been hesitant to sign such media access agreements due to the potential financial risks involved in indemnifying the police department for any claims or damages arising from their activities.

“It could absolutely expose the journalists [and] the broadcast organizations, for doing what they are required to do which is to inform the public,” Sasso said. “If you reported on an active shooter and told people to stay away from the area, but somebody disregarded that and went into the area … and they were injured or killed, they, or their next of kin, because of that indemnification clause could essentially sue the broadcaster for telling the person where not to be.”

Additionally, the Denver Police Department offers “decryption licenses,” which are priced at $4,000 and subject to significant insurance requirements. This policy requires news organizations to sign an agreement with a so-called auditor’s clause which says that “any authorized agent of the City, including the City Auditor or his or her representative, has the right to access and the right to examine any directly pertinent books, documents, papers and records of the Licensee.” Journalists have been reluctant to sign an agreement granting city authorities, such as the city auditor or their representatives, unrestricted access to their journalistic materials, as it could compromise the confidentiality of their sources and investigative methods.

Not only are these policies not good faith efforts to allow the press to access police encrypted radio transmission, but they are also not in compliance with the law. Specifically, no responsive records showed that the policies were created in “collaboration with Colorado-based media outlets.”

“The few law enforcement agencies in Colorado that have drafted media agreements have done so in way that violates a journalist’s code of ethics. These agencies choosing to encrypt are obstructing the public’s constitutional right to know,” Sasso told Truthout.

Instead, the responsive documents received show reporters frustrated by the departments’ noncompliance with the law and a lack of collaboration with media outlets in drafting access agreements. “I believe the spirit of this law is to provide the public [with] the ability to know what their law enforcement is up to, absent legitimate reasons not to,” Matt Sturtz of Mountain News Net wrote in an email Truthout received in response to a record request. “I would love to see [Broomfield Police Department] abandon all encryption, in the interest of transparency…” In response to that email, the city and county attorney only replied: “In response to your request, attached is the Broomfield Police Department Media Access to Radio Communications Policy and Radio Use Agreement.”

Other States Attempt to Expose Police Radio Transmissions

By August 2023, police departments in at least seven states switched their communications to encrypted systems inaccessible to the public and the press. In response, state legislators in California, Illinois and New York have introduced bills that would require law enforcement to allow media access to police radio communications. None of the bills have yet become law; California’s Law Enforcement Communications Transparency Act died on its third reading in January, New York’s Keep Police Radio Public Act is currently under review by the Assembly’s Governmental Operations Committee, and Illinois’s House Bill 4339 has been re-referred to the Rules Committee.

The bills seem to suffer from the same limitations of Colorado’s HB 21-1250. In fact, the Law Enforcement Communications Transparency Act closely resembles the measure adopted by Colorado in 2020. SB 719, co-sponsored by the California News Publishers Association and the California Broadcasters Association, mandates that law enforcement agencies opting for full encryption of communications must allow all media requests to access and review those communications within 30 days. Like Colorado’s law, California’s SB 719 includes no enforcement mechanism. Similarly, New York’s Keep Police Radio Public Act, or A9728, also requires law enforcement departments to provide timely access to radio communications for media, emergency services and the public, but it too lacks an enforcement measure. Illinois’s House Bill 4339 amends the Public Records Act, which governs public access to government information, to require that any law enforcement agency employing encrypted scanners must provide real-time access to Federal Communications Commission-licensed broadcasters and accredited newspapers. This access could be granted through licensing, digital keys or alternative methods. However, there is, again, no enforcement mechanism included in the bill.

One of the possible reasons these laws, including HB 21-1250, lack an enforcement mechanism is because of police union lobbying. “The media and politicians pander to the police unions and ensure the narrative will always be in their favor,” Eric King, co-editor of Rattling the Cages: Oral Histories of North American Political Prisoners, told Truthout.

In fact, according to OpenSecrets, police unions and associations have invested more than $48 million in state lobbying efforts and have donated nearly $71 million to state-level candidates and committees in just the past 10 years. In Colorado, the Colorado Police Protective Association, which currently has 1,600 members, actively monitors bills “to see how they might impact Law Enforcement” and lobbies the Colorado general assembly “to influence legislation that directly affects law enforcement.” While police departments may lobby legislators to amend legislation to not include enforcement mechanisms, their noncompliance with HB 21-1250 shows that enforcement mechanisms are necessary for compliance.

“Even though police violence hasn’t seemed to halt with the increased visibility, the only chance victims have of accountability or justice is through visibility and transparency,” King said.

Steps Forward

“The Denver Police Department is committed to transparency and access to information, while never forgetting that our top priority is protecting the community and the officers charged with that responsibility,” Paul M. Pazen, Denver’s chief of police, wrote in a 2019 community letter. Pazen asserted that he had met with the media five times over eight months and “ensure[d that] we have a system in place that balances the needs of the media with the safety of the community and our officers.”

The Denver Police Department has asserted that encrypted radio transmissions are crucial for safeguarding the privacy of victims, witnesses and juveniles, as well as for protecting tactical and investigative details, and ensuring officer safety while preventing suspects from eavesdropping during incidents and investigations. But advocates say that this is part of a larger effort to cover up police violence.

“The system of policing in Aurora, Colorado, murdered Elijah McClain and that isn’t the first time departments have had misconduct to such an awful extent. It’s known that police will try to cover their injustices instead of addressing them. Instead of fixing the issue, they are acting like the problem is transparency,” Khalid Hamu, an organizer with the Denver chapter of Students for a Democratic Society, told Truthout. “The police have seen that people will rise up as a result of their actions and push back with all their might. We are seeing an increased effort to hide instead of address problems.”

While free press advocates say that greater police transparency is needed, the auditor’s clause present in Denver’s decryption license and media access policy makes it effectively impossible for press to sign the media access agreement and flies in the face of HB 21-1250. As free press advocates are considering whether they should return to the Colorado legislature to add some teeth to the bill, abolitionists say that while transparency is needed, it also is not enough to eradicate police violence.

“Transparency is a tiny step. I see it as a fairly weak one at best. What are we asking for transparency about when we know the history and record of these institutions?” Williams said. “Of course, it is nice to have ‘gotcha’ moments. That said, it’s easy to fall into a trap that transparency equals justice. Justice is no police. If transparency helps us get there, great.”

For example, although body-worn cameras have become a widely accepted and lasting police reform in the U.S., investigations have found that police departments often delay releasing footage, provide only partial or redacted videos, or refuse to release any footage at all. Departments also have frequently failed to discipline or fire officers even when body cameras document abuse and sometimes withhold footage from agencies responsible for investigating police misconduct. Additionally, despite the implementation of such transparency measures, police killed more people in 2023 than any previous year in the past decade and are killing people at a higher rate in 2024.

Hamu believes that while transparency may not end police violence it may “help people understand the reality of police” and inspire them to organize “against police violence in the future.”

“I think we need the people in neighborhoods/communities to have the ability to democratically participate in the relations the police have with their communities. Things like determining the budget, policy, who is on the force, if they want to abolish the police, etc.,” Hamu said. “Then will the violence of policing get curbed and eventually gone.”