The fate of a state bill that would require police departments throughout California to remove encryption from their radio communications remained uncertain Wednesday after the Assembly Appropriations Committee deferred a decision on the contentious proposal.
Senate Bill 1000, authored by state Sen. Josh Becker, was one of dozens of legislative proposals that the powerful committee placed in its "suspense file," a list of bills that are projected to have a financial impact and that will be evaluated later in the legislative process. The bill had already been approved by the state Senate in May and the Appropriation Committee represents its last — and steepest — hurdle for the legislation.
The financial impact of Becker's bill remains heavily disputed, with proponents arguing that it would be relatively inexpensive to adopt policies that increase public access while retaining encryption for most communication and opponents arguing that it would cost millions of dollars to achieve compliance. The debate over costs and implementation is expected to be a key issue in determining whether the bill makes it out of the suspense file.
SB 1000 gives public agencies a menu of options for complying. These include using an encrypted channel to exchange confidential and personal information while leaving other communications accessible; transmitting confidential information through a mobile data terminal, tablet or other text display device; or using a telephone to share such information.
In prior meetings, Becker, D-Menlo Park, pointed to various agencies that did not resort to full encryption to comply with an October 2020 directive from the state Department of Justice requiring them to protect personally identifiable information like driver's license numbers and criminal background. The California Highway Patrol, for example, continues to broadcast its radio communications on an open channel. State troopers use vehicle computers or other means to transmit information deemed confidential. Roseville, a city in Placer County, uses an encrypted channel for personally identifiable information and an unencrypted one for everything else.
The state DOJ gave agencies two options for complying with its directive: going to full encryption or adopting policies to protect personal information. Palo Alto and most other police agencies in Santa Clara County opted to go to full encryption and pointed to the DOJ memo as justification. Now, having succeeded in cutting off public access to their communications, some of these agencies are arguing that going back would be too expensive.
The Riverside County Sheriff's Department is among those that made the switch to full encryption. At a June hearing in front of the Assembly's Public Safety Committee, department spokesperson Sgt. Julio de Leon said that the department had spent "millions of dollars and thousands of personnel hours" to meet the DOJ mandate.
"Now with this bill, the legislation will be forcing us to decrypt communication once again, which will cost us several million dollars to accomplish this task," de Leon said.
While the Public Safety Committee approved the legislation by a 5-2 vote, members warned that the financial impact of compliance will be a major issue when it comes to the bill's ultimate passage. Committee Chair Reggie Jones-Sawyer predicted that unless Becker resolves the argument over the costs, he'll have "a difficult time to get out of Appropriations and get off the floor."
Becker's bill does not require agencies that have adopted encryption to de-encrypt. It gives them the option of streaming radio communication on their websites or providing access to encrypted communication "upon request or for a reasonable fee."
But even despite these provisions, the legislative analysis that was provided to the Appropriations Committee for its Wednesday hearings concluded that complying with the bill would cost some state agencies and public safety departments more than $10 million. California State University would need to incur costs "in the upper tens of millions of dollars to comply with this bill." The university system had estimated that it would cost between $75 million and $100 million to buy new radio equipment with both encrypted and unencrypted channels and to install this equipment in all police vehicles, portable radios and dispatch centers.
The legislative analysis also states that CSU anticipates "significant ongoing personnel costs to hire positions that will update and maintain the necessary information on websites to make sure the CSU remains in compliance."
The analysis also estimated that complying with the bill would cost California State Parks about $10.5 million and that the California Department of Forestry and Fire Prevention (Cal Fire) would have to spend about $18.7 million in the first year and $513,000 annually thereafter.
The cost to the California Community Colleges system is estimated at between $5.7 million and $16.4 million. That would fund development of policies to protect private information, buying new radio equipment capable of public monitoring for seven districts that already have fully encrypted systems and buying new radio equipment for 65 other districts, if they choose to utilize an encrypted channel to transmit protected information, according to the legislative analysis.
"CCC (California Community Colleges) estimates the total costs could be lower, if districts already have an existing policy, switch to other forms of communication, as authorized by this bill, or have already purchased radios that are capable of partial encryption," the analysis states.
The analysis singles out Palo Alto as an agency that has switched to full encryption and that has resisted calls to develop alternative means to comply with the Department of Justice directive. It also cites a memo that the Police Department released earlier this year that asserted without citing any evidence that other means of transmitting personal information can "put the officer and the public at risk" and that "there are no other feasible SB 1000 options at this time to implement 'unencrypted' radio transmissions."
Notwithstanding this assertion, the City Council agreed in April to support SB 1000 even as it allowed the Police Department to continue to block public access to police communications.
According to the legislative analysis, as of April about 120 law enforcement agencies across the state have opted to keep their radio communications fully encrypted, allowing no public access.
Becker emphasized in his argument in favor of the legislation that SB 1000 is not a mandate to de-encrypt and that it "provides a host of options to public safety departments big and small and grants protections to law enforcement who may transmit private information over accessible radio waves for officer safety.
"CHP and many counties and cities will not be impacted fiscally or operationally if SB 1000 were to pass today and the bill balances privacy and First Amendment needs," Becker wrote. "Now is not the time to reduce police transparency."
The bill has also been endorsed by the American Civil Liberties Union, which noted in its argument that the legislation allows departments to continue to use an encrypted radio channel for "tactical operations, undercover operations, or other communications that would jeopardize public safety or the safety of others."
But the California State Sheriffs' Association, which opposes the bill, asserted that SB 1000's "general default" to unencrypted radio communications would represent a "significant burden to agencies that went to tremendous expense to obtain new technology or have previously encrypted their communications.
"Additionally, to switch back to mainly unencrypted radio communications will require costly and time-consuming training in order to protect CJI (criminal justice information) and PI (personal information)."