Christian Abouchaker
Information Privacy Law
Professor Ira Rubinstein
March 21, 2017
Fourth Amendment Protection and “Smart” Homes
While the use of smart meter technology in homes across the country offers notable benefits with respect to energy monitoring and cost reduction, it also gives rise to important privacy concerns.
In Naperville Smart Meter Awareness v. City of Naperville, a federal district court in Illinois held that there is no reasonable expectation of privacy in data collected by smart meter devices, and that such data is outside the scope of Fourth Amendment protection. In this case, the Naperville Smart Meter Awareness Association (NSMA) alleged that the City’s installation of smart meters constituted an unreasonable search and an invasion of privacy under the Fourth Amendment. Smart meters collect energy use data at high frequencies, typically every 5, 15, or 30 minutes. In doing so, smart meters provide aggregate measurements of a household’s electrical usage. NSMA further alleges that smart meters have the capability of capturing detailed information about electricity usage, such as remote daily tracking of time patterns and power loads associated with power usage, therefore providing information about the personal details of a person’s private life. However, the Court held that NSMA members had no expectation of privacy in the aggregate measurements of their electrical usage. The court’s decision is based on the presumption that data collected from smart meters is no more informative than the data collected by analog meters.
This case is currently on appeal to the U.S. Court of Appeals for the Seventh Circuit. EFF and Privacy International have requested to file a brief addressing the broader impacts of the District Court’s decision. In their brief, EFF and Privacy International offer that smart meter data constitutes “intimate information regarding a person or family’s private, in-home activities”, given the time granularity of such data (i.e. a reading every 15 minutes, or 2,800 readings in a 30-day month). Given the intimate nature of this information, it is argued that smart meter data should be afforded the utmost Fourth Amendment protection. Further, the brief presents data from a normative inquiry into Americans’ privacy expectation surrounding data regarding their in-home activities, which indicates that Americans are particularly concerned about the privacy of data tied to their homes. Based on these findings, and given that certain states have enacted laws protecting data collected via smart meters (e.g. Cal.Pub.Util.Code §§ 8380–8381 prohibits utilities from sharing or disclosing customers’ consumption data to third parties without consent, and also requires the maintenance of “reasonable security procedures”, including encryption, for consumers’ electricity usage data), EFF and Privacy International allege that there is a reasonable expectation of privacy with respect to smart meter data.
Considering that more than 40% of American households currently have a smart meter, and that this figure is expected to reach 80% by 2020, the outcome of this case will have significant implications for the privacy of Americans.
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