Does a smart meter mandate violate the Fourth Amendment’s prohibition on unreasonable government searches? Tomorrow (3/27), the 7th Circuit will hear oral argument on this question (thread) . . .
In 2010, the municipal utility of Naperville, IL was awarded a DOE grant to install smart meters. Residents raised health and privacy issues; city allowed opt-outs of wireless meters but mandated smart meters that collect data every 15 minutes.
Group of residents calling themselves Naperville Smart Meter Awareness (NSMA) filed suit – procedurally this gets messy, but at issue on appeal is the federal district ct’s dismissal of their 4th Amendment claims on a pre-trial motion to dismiss.
NSMA alleges that data collection from smart meters is constitutionally different from once-a-month meter reads bc it allows the government “to obtain a highly detailed picture of activities within a home” without “customer consent or control.”
NMSA: The city “has coercively placed a black box at every resident’s home, and is using it to take multiple measurements every hour that, when analyzed, will reveal intimate details of life within their homes.”
NMSA highlights that the text of the 4th Amendment specifically emphasizes home privacy and case law affirms the sanctity of the home.
NMSA is supported by @EFF and @privacyint which highlight how smart meter data can be used to deduce “avocations, finances, occupation, general reputation, credit, health, or any other personal characteristic of the customer or the customer’s household.”
The district ct dismissed the complaints bc it found that NMSA’s claims that the data could be analyzed to reveal personal information were hypothetical and speculative. In other words, even if the City could peer into personal lives, no evidence that it actually had.
NMSA responds that the 4th Am. “covers warrantless collection of data, regardless of whether or how that data is later analyzed or used….Just as police cannot walk into a home and collect things, the government may not intrude into a home and collect data w/o…consent.”
NMSA also points to Supreme Court cases about new technology. In Kyllo, the Court held that police use of thermal imaging w/o a warrant to detect pot growing violated 4th Amendment. Court said “all details [of the home] are intimate details” even temp. of roof and walls
City rejects applicability of Kyllo and other cases bc they’re about police. It points to cases holding that once someone voluntarily gives info to a third party, that person loses the expectation of privacy. Court has applied this doctrine to phone co, banks, accountants.
NMSA responds that providing the data is not voluntary bc residents need the city utility for electric service. City responds that the Supreme Court already rejected this theory, pointing to dissent in the 1979 phone case –
“unless a person is prepared to forgo use of what for many has become a personal or professional necessity,” i.e., a telephone, “he cannot help but accept the risk of surveillance.” But the majority rejects this theory and city argues it can’t be applied to electric service.
City is supported by EEI, APPA and NRECA, the utility trades. Their brief begins w analogy to time of Framers – the amt of fuel used in a home was not a secret– it was revealed by the chimney smoke. The smoke, apparently, is smart meter data. No expectation of privacy for either.
Utilities argue smart meters are “pervasive,” a relevant fact bc “courts recognize that, the more common the method of gathering information, the less reasonable is any expectation of privacy” and pt to cases upholding police use of a flashlight and aerial photos w/o a warrant.
City and utilities point to a 6th Circuit case holding cell phone users have no expectation of privacy about their location when it’s determined from tower data.
Utilities also argue that 4th Amendment requires balancing interests and the benefits of smart meters weigh in favor of their reasonableness.
Important to highlight that an opt-out might have satisfied residents and negated any potential issue; alternatively city might have provided stronger assurances that data would not be shared or used by police.
NMSA has helpfully posted all the briefs napervillesmartmeterawareness.org/FederalLawsuit…
Energy consumption data is critically important for improving the distribution system – see Remaking Energy: The Critical Role of Energy Consumption Data by Alex Klass and Elizabeth Wilson papers.ssrn.com/sol3/papers.cf…
Yesterday the 7th Circuit held that a city's mandatory smart meter program is not an unreasonable government search under the 4th Amendment. For background, see above. Decision - media.ca7.uscourts.gov/cgi-bin/rssExe…
The court balanced the significant govt interests in deploying smart meters against the privacy interests. Critically, only the city's utility had access to the data. Police needed a warrant. Thus, privacy interests are limited.
Court: city "conducts the search with no prosecutorial intent." Court found significant benefits (based on the record), including reduced costs, encouraging efficiency, increasing grid stability. Overall, smart meters contribute to grid modernization.
For 4A nerds: court found third-party doctrine inapplicable and that smart meters are not "in general public use" under Kyllo.
