Court rules accessing smart meter data constitutes a government search

[Swordsmyth]

Smart meters are designed to reduce energy consumption (https://www.engadget.com/2018/01/29/americans-are-using-less-energy-by-staying-at-home/), lower household bills and, by extension, help the planet along a little bit. But could they also be used by the government to spy on you? This is the question that was thrown into the spotlight this week when the Seventh Circuit handed down a landmark opinion ruling, stating that data collected by smart meters is protected by the Fourth Amendment.




Data provided by smart meters does not facilitate spying in the traditional sense, of course. But as these devices collect energy usage data at high frequencies (every five, 15 or 30 minutes, usually) it wouldn't be difficult for someone with access to that data to build a pretty clear picture (https://www.engadget.com/2017/09/25/companies-will-use-ai-to-stamp-out-electricity-theft/) of what's going on inside that property -- information that wouldn't otherwise be available without a search.
Previously, courts have ruled that the Fourth Amendment does not protect household energy data -– a precedent largely based on readings from traditional analog energy meters which don't really reveal anything at all, other than the total amount of energy used over a long period of time. The Electronic Frontier Foundation (EFF (https://www.engadget.com/2018/06/27/the-eff-email-servers-secure-starttls/)) and Privacy International filed an amicus brief urging the Seventh Circuit (a federal court with jurisdiction in the central and northern districts of Illinois) to reconsider this position, which they subsequently did, potentially setting an example for the protection of energy data throughout the US.
The court held that residents have a reasonable expectation of privacy, and government access of this data constitutes, in essence, a search. It added that the "ever-accelerating pace of technological development (https://www.engadget.com/2017/07/24/uk-smart-flexible-grid/) carries serious privacy implications" and that smart meters "are no exception." This ruling sets a critical precedent. According to the EFF more than 40 percent of American homes have a smart meter – a number set to rise to 80 percent by 2020. Some reports (https://crosscut.com/2018/04/city-light-provided-customer-information-ice) suggest law enforcement agencies are already trying to get access to data from energy companies without a warrant -- this ruling could be crucial in staving off unjust invasions of privacy.

https://www.engadget.com/2018/08/23/court-rules-smart-meter-data-government-search/?yptr=yahoo

[CaptUSA]

Win

https://www.eff.org/deeplinks/2018/08/win-landmark-seventh-circuit-decision-says-fourth-amendment-applies-smart-meter

[Bern]

Awesome. EFF does good work.

[brushfire]

Phew... So that must mean that the NSA can no longer collect our phone, email, location data.

[Anti Federalist]

Phew... So that must mean that the NSA can no longer collect our phone, email, location data.

If this stands, then yes, that is what the end game could be.

[Anti Federalist]

I'm happy to say I belong to EFF as well.

[Anti Federalist]

The Seventh Circuit recognized that this energy usage data “reveals information about the happenings inside a home.” Individual appliances, the court explained, have distinct energy-consumption patterns or “load signatures.” These load signatures allow you to tell not only when people are home, but what they are doing. The court held that the “ever-accelerating pace of technological development carries serious privacy implications” and that smart meters “are no exception.” (https://www.eff.org/deeplinks/2018/08/win-landmark-seventh-circuit-decision-says-fourth-amendment-applies-smart-meter)

Been screaming this for years.

Once again, told you so.

[Brian4Liberty]

Been screaming this for years.

Once again, told you so.

Not sure how accurate they are though. There is a bit of guessing going on. One appliance running? Sure, pretty easy. Ten things going? Not so easy. Their assumptions are often wrong.

[oyarde]

Not sure how accurate they are though. There is a bit of guessing going on. One appliance running? Sure, pretty easy. Ten things going? Not so easy. Their assumptions are often wrong.

I run stuff all the time just to make sure they do not know what I am doing .

[Grandmastersexsay]

Not sure how accurate they are though. There is a bit of guessing going on. One appliance running? Sure, pretty easy. Ten things going? Not so easy. Their assumptions are often wrong.


The main thing they are checking for are grow lights for marijuana. They usually have them on a timer. It's pretty easy to detect when a couple extra kW are being used at the same time every day for 18 hours consistantly.

[shakey1]

... opinion ruling...

Sounds to me to be just that... perhaps a small victory, but will likely go nowhere towards the cause of liberty.

[Schifference]

Does that mean SWAT teams don't break down your door, shoot your family and pets, because you consume an exorbitant amount of electricity? Was not electrical consumption the way many grow operations were identified?

[CaptUSA]

Ok, hold the phone on this...

I've gotten a chance to review the ruling and it's not how it's being characterized.


We can resolve both the state and federal constitutional claims by answering the following two questions.3 First, has the organization plausibly alleged that the data collection is a search? Second, is the search unreasonable? For the reasons that follow, we find that the data collection constitutes a search under both the Fourth Amendment and the Illinois Constitution. This search, however, is reasonable.
4:(
(sorry, can't link the PDF, but I'm sure someone can find it.)


B. The data collection is a reasonable search.
That the data collection constitutes a search does not end our inquiry. Indeed, “[t]he touchstone of the Fourth Amend-ment is reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250 (1991). Thus, if Naperville’s search is reasonable, it may col-lect the data without a warrant. Since these searches are not performed as part of a criminal investigation, see Riley v. Cali-fornia, 134 S. Ct. 2473, 2482 (2014), we can turn immediately to an assessment of whether they are reasonable, “by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate government interests.” Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 187–88 (2004) (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979)). Alt-hough in this case, our balancing begins with the presump-tion that this warrantless search is unreasonable, see Kyllo, 533 U.S. at 40, Naperville’s smart-meter ordinance overcomes this presumption.

But to me, this is the key point in the entire ruling which may provide some hope:


Residents certainly have a privacy interest in their energy-consumption data. But its collection—even if routine and fre-quent—is far less invasive than the prototypical Fourth Amendment search of a home. Critically, Naperville conducts the search with no prosecutorial intent. Employees of the city’s public utility—not law enforcement—collect and re-view the data.

...We caution, however, that our holding depends on the particular circumstances of this case. Were a city to collect the data at shorter intervals, our conclusion could change. Like-wise, our conclusion might change if the data was more easily accessible to law enforcement or other city officials outside the utility.

In other words, they've upheld the city government's process of data collection and didn't even prevent law enforcement from accessing it; only that they may have to review the ruling if it became available to law enforcement without a warrant. So, not a thing has changed. Yeah, they deemed it a search, but not an unreasonable search that would have been protected by the fourth amendment.

[CaptUSA]

I should note, this was a 3-judge panel of the Seventh District. Appointed by Clinton, Reagan, and Ford.

[Anti Federalist]

I should note, this was a 3-judge panel of the Seventh District. Appointed by Clinton, Reagan, and Ford.

Curious to see if this goes to SCOTUS