Former Public Affairs Officers Push Back on Advanced Industry Reaction, Plus Police Scanner Transparency and Ag-Gag Ruling

A proposed rollback of the century-old Migratory Bird Treaty Act met with an angry response from former government officials. The act was put in place to prevent the exploitation of bird species such as the snowy egret, shown above in the Deal Island Wildlife Management Area in Maryland on May 26, 2020. Photo: Chesapeake Bay Program/Will Parson, Flickr Creative Commons. Click to enlarge.

WatchDog Opinion: Former Public Affairs Officers Push Back on Advanced Industry Reaction, Plus Police Scanner Transparency and Ag-Gag Ruling

By Joseph A. Davis

 

1. ‘What They Are Saying’ Press Release Format Raises Issues About FWS Rulemaking
2. Police Scanner Encryption Raises Transparency Issues for Journalists
3. N.C. Judge Knocks Down Another “Ag-Gag” Law As Unconstitutional

 

1. ‘What They Are Saying’ Press Release Format Raises Issues About FWS Rulemaking

Under the Trump administration, public affairs has become a blood sport. Environmental reporters have gotten used to hardcore press operations ever since the U.S. Environmental Protection Agency mounted a “war room” campaign back in 2017.

One of the hallmarks of Trump agency flackery has been the “What They Are Saying” gimmick — in which agencies like EPA publish a press release quoting all the positive reactions they can find to some new agency rollback of environmental protections. 

Now a press release on a Fish and Wildlife Service rollback of the Migratory Bird Treaty Act has spawned charges of illegal collusion with industries benefiting from the rollback.

Why? The comments came before the rulemaking ever went out for public comment. 

Federal rulemaking must take place under the Administrative Procedure Act of 1946. In a nutshell, the act required agencies to publish proposed rules in the Federal Register, gather public comment on them and then to seriously consider those comments before finalizing a rule. Failure to follow these procedures could open a rule to invalidation in court.

The Trump administration’s Fish and Wildlife Service, or FWS, has been unhappy with the Migratory Bird Treaty Act because it allows the government to penalize people or industries who harm or kill migratory birds — intentionally or otherwise. 

The law, which goes back to at least 1916 and implements U.S. treaty obligations, has been interpreted for most of that time to forbid killing or harm of protected birds whether intentional or incidental. The government can outlaw hunting of birds, or it can prohibit, say, the draining of a wetland that they need to survive. 

 

Among the industries which do not like [the act]

are major land-altering enterprises like agriculture, 

real estate development, mining, and oil and gas drilling.

 

Among the industries which do not like this provision are major land-altering enterprises like agriculture, real estate development, mining, and oil and gas drilling — all of which are allies of the Trump administration. 

So now, the Trump administration has proposed decriminalizing harm to migratory birds when it is “incidental” rather than intentional. But when the Trump FWS put out its press release on Jan. 30, 2020, announcing its proposed change to FWS rules, it included a “What They Are Saying” gallery of enthusiastic praise from 28 industries, lobby groups and politicians backing the change. 

Since this was before the proposal had been officially published in the Federal Register, it prompted a complaint from a group of 10 former FWS public affairs officers, led by former FWS press officer David Klinger. 

Not only was the pre-comment-palooza unethical and contrary to good PIO practice, they argued, but it was “legally actionable as a potential violation of the Federal Administrative Procedure Act.” Whether or not FWS flacks could be prosecuted for partisan press-agentry, the comment-fest offered tangible evidence for any future legal challenge of the rulemaking’s procedural fairness, they said.

The group’s complaint went to the Interior Department’s Inspector General, seeking an inquiry.

“We are asking the Office of the Inspector General to investigate exactly how these groups were informed and involved in the preparation and announcement of the proposed regulation,” they wrote.

Any argument that FWS had already made up its mind on migratory birds would be open-and-shut — even without the gratuitous pre-comments. Interior had already taken that position back in Dec. 2017, in a legal opinion by its politically appointed solicitor.

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2. Police Scanner Encryption Raises Transparency Issues for Journalists

In the old days — back when every town had a daily newspaper — reporters used to sit around the newsroom while a police scanner squawked and chirped in the background, ready to chase any siren they heard to snag a story (say, a local chemical spill or other toxic emergency). Today, those squawks are increasingly encrypted, raising new questions of transparency and accountability.

Radio voice encryption technology has evolved from its most primitive forms around the time of World War II, to the point where it was accessible in the early 2000s to police, who only started adopting it slowly because it created almost as many problems as it solved.

When police transmissions consisted of simple unencrypted short wave signals, they could be received by a simple scanner, a device that lets you listen for action simultaneously on multiple channels (that may often be silent). The technology evolved and soon “trunked” radio systems were making police communications more efficient, but harder for hobbyists to listen to without more expensive equipment. 

Today, systems are even more sophisticated. Since at least the 9/11 attacks, police have become even more aware of the security issues raised by their communications. In the end, it’s not so much that terrorists may be listening as that criminals can and do listen to police radio to avoid capture. And yes, citizen-hobbyists and news media listen, too. 

But big, complex modern disasters like 9/11 have also underlined the importance of “interoperability” — of many agencies being able to communicate with each other in times of need. This is why common, open channels still have big benefits to police (even while they have also evolved private channels for sensitive and tactical operations).

 

One obvious drawback, from the viewpoint of journalists,

is that we can’t listen in to learn about where

the fire is, or who got shot or who got caught.

 

For several reasons, the pace of adoption of encryption in police radio has been picking up in recent years. One obvious drawback, from the viewpoint of journalists, is that we can’t listen in to learn about where the fire is, or who got shot or who got caught. A more recent concern is that it is harder to watchdog police misconduct.

For example, in 2019, an increasing number of police agencies in Colorado began encrypting their radios, a trend which has continued into 2020, with even the Denver Fire Department going dark. As far back as 2018, there had been bills in the Colorado legislature to prohibit encryption of at least some police radio. The latest of these failed in March 2020, and encryption continues to spread. This same story is going on in other states, too. There is a similar bill still in play in California.

Police arguing for encryption say it not only deprives bad guys of an advantage, but it prevents misinformation from circulating and can protect the privacy of crime victims and witnesses. But crime reporters say it can make their work more difficult and less timely, and renders them less able to properly inform their audiences. First Amendment advocate David Cuillier, a journalism professor, says police need open radio channels to bolster flagging public trust.

Evolving technology has brought us smartphone apps that today relay information from police scanners. Even more importantly, perhaps, the cameras on phones have in many cases recorded police misconduct, as happened in the George Floyd case.

Some police agencies have recognized the legitimacy of journalists’ use of scanners. The Denver police department, for example, has been trying to come up with a legal agreement that would allow reporters access to encrypted channels. One problem is that few news organizations may want to agree to the conditions that such agreements would impose.   

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3. N.C. Judge Knocks Down Another “Ag-Gag” Law As Unconstitutional

Yet again, a federal judge has thrown out a state law prohibiting undercover probes of factory farm operations as violating the First Amendment, this time in North Carolina. District Judge Thomas D. Schroeder ruled June 12 that North Carolina’s “ag-gag” law was unconstitutional.

Journalists, as well as animal-cruelty activists, have exposed unsavory practices at farms, feedlots and slaughterhouses by smuggling cameras in unbeknownst to operators. Sometimes journalists have gotten the video from activists. 

But prodded on by lobby groups like the American Legislative Exchange Council, some states have passed laws outlawing secret monitoring or nondisclosure of affiliations by employees. Federal judges have tossed such laws in Iowa, Utah and Idaho. Ag-gag legislation has caused controversy in other states, like Tennessee and Pennsylvania, since 2013. 

The Society of Environmental Journalists has joined other journalism groups in court briefs opposing some of these bills and laws.

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Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, as well as compiling SEJ's weekday news headlines service EJToday. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column and WatchDog Alert.

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* From the weekly news magazine SEJournal Online, Vol. 5, No. 27. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.