Good discussion. I've been a member and occasional lurker for a long time, and I usually never enter the fray.
To be transparent here, I'm a hobbyist (I grew up listening to my dad run EMS calls on a 4 channel crystal scanner), but I also spend a little money and time on streaming feeds to BCFY for others to listen to online. I have to admit my bias. Also, I'm neither from nor live in California. I just happened to see this pop up in the active feeds.
My city and our big sister city's PDs are encrypted across the board. The state police and county sheriff's dispatch traffic are not. We tried to resist this when it went into effect, but city governments tend to defer to their PDs authority in these cases. The arguments were made by these two city PDs that they didn't want perps listening in on cell phone apps to real time traffic. While that argument my have merit in some isolated cases, the effect of keeping this information from the public and especially the press has caused a lack of ability for reporters to cover the PD in real time. One particular PD has been in turmoil for some time due to high turnover, violent crime rates, a questionable officer-involved shooting, the firing and reinstatement of that officer, and now that same department's response to protests. I believe that the residents of that city have a good case to appeal to the Mayor and Council to take steps to remove encryption from dispatch and normal operations traffic. Police in general are under a lot of scrutiny right now, and rightfully so. We give law enforcement a tremendous amount of authority and funding. I believe that giving the public and the press access to dispatch traffic and making sure that police traffic occurs over the provided LMR network would be a step in the right direction if these departments want to regain the public's trust. Since they began encrypting all traffic, the PDs control all of the information that makes it out of the department to the public. In situations like the officer-involved-shooting that I mentioned above, that gives the PD and city government a chance to get out ahead of the story or stonewall it altogether. Sure, the encrypted radio traffic can be FOIAd after the fact, and frequently is by watchdog groups and the press. Unless someone is killed, a video turns up, enough people saw something questionable happen, or a reporter just has a hunch, it is hard to know when and what to FOIA.
There is no question that local and state governments have the power to tell the departments that they fund how to operate. That includes how they communicate. That includes encrypting radio traffic and using their own cellular devices in the course of doing what the government pays them to do. Also, all four of the departments that I mentioned above use the same statewide P25 network that was built after the state legislature approved the funds and the governor signed it into law. The state government maintains the network, and that gives the legislature and governor a say in how it is used. The purse strings are a big determining factor, and as a matter of fact, since the federal government provides matching funds, grants, equipment, etc. to the states and locals, they may have a say in the matter as well.
This discussion really doesn't have much to do with the FCC, who really doesn't care what happens on licensed frequencies so long as the licensees adhere to the rules concerning power, number of users, antennas, bandwidth, and when/how they ID their stations. As far as I know, the only restrictions the FCC enforces on encryption occur in the amateur and possibly broadcast bands.
It seems that many present our oversight of law enforcement in a very restrictive, binary way. That's unfortunate. I hate to have to clarify, because I believe that it is kind of insulting to readers capable of abstract thought, and I honestly don't believe that I should have to say it. Still, I am not anti law enforcement. I worked a couple years in EMS on night shift in some of the toughest neighborhoods that central Arkansas has to offer, and still do work in emergency medicine. I know a lot of LEOs in all these departments because I've worked a lot of scenes with them. I know the lion's share of them to be people like you and me who have a tough job, but also take the law and their oaths and responsibility to the citizens seriously. Just like any profession from burger flipper all the way up to CEO, there are some lazy and self-serving people in their ranks. If you put a badge and a gun on a pile of garbage, it is still a pile of garbage. There are also some truly awesome individuals in there, too. I've witnessed examples of all of these things. With the amount of power that we give them over our everyday lives, including the ability to use escalation of force all the way from verbal engagement up to lethal force, there is a need for broad oversight.
As mentioned above, the news media has changed so much that, unfortunately, providing them with radios isn't enough. I think that a lot of the decline of the traditional fourth estate is due to advertising and funding, but also a lot of it is due to politics in general where reporters have to clamor for access. Since I began streaming fire and EMS, I've taught a few reporters how to listen to the calls going out to determine where the news is. "Listen for the 27, 4, 29 codes and pay attention when the dispatcher tells a unit to hold back or hold short." Only a few print reporters were interested in that. Most of the television and many print reporters (including some of the big anti-cop sensationalists) didn't care to know how to listen. So it goes.
