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Privacy and the Police | | | 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. | |
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> | 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. | | | 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. | | | Conclusion
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. | |
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I consider myself to be entitled to use encrypted voice communications to which the State and its police don't have access. I think that's a constitutional right, one I have fought for. Unless we were to abandon altogether our belief in the exercise of constitutional rights by organizations, that also explains why my 501c3 law practice, or IBM, or a private security business, has the same rights. Does that not suggest that we should begin from the proposition that public entities do too? Surely we will find more policy arguments advanced on behalf of the police's right to use encrypted communications than those put forward on behalf of those who might (precisely, perhaps, because of their insistence on escaping State listening) be characterized as "bad guys"?
No one has suggested so far as I know that the use of encrypted radio communications exempts police from public records requirements, or that inquiries into police conduct will be unable to read or listen to transmissions. As you rightly emphasize, this is an issue of real time access to the operational communications of paramilitaries. It would very much improve the argument, it seems to me, if you could offer a clear position about why general rights to communications privacy should not apply to the real-time communications of public safety personnel on duty.
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