Three Energy Bills Look To Increase Fourth Amendment Protections For Americans
from the walking-back-the-third-party-doctrine dept
Senator Ron Wyden has introduced a trio of energy bills for the Senate’s consideration. The three bills each have their own area of focus.
One bill [PDF] would direct the Department of Energy — along with state entities — to upgrade the flexibility and reliability of energy grids, thus limiting disruption during natural disasters. The second bill [PDF] creates grant programs for consumer-level renewable energy, providing incentives for purchase and deployment of solar panels, electric vehicles, and energy-efficient appliances. The third [PDF] tasks the DOE with leading the way for renewable energy storage R&D in hopes of driving costs down and providing more affordable alternatives to non-renewable energy sources.
Beyond their renewable energy focus, these three bills all have one thing in common: law enforcement agencies aren’t going to like them. Each bill contains language erecting warrant requirements for law enforcement access of consumer energy usage data.
In each bill, under the “Privacy, Security, and Resilience” heading, Wyden has inserted a clause limiting warrantless access to energy customer data to identifying info only
A governmental entity may obtain from an electric utility, third party aggregator, or other nongovernmental entity under an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena the—
(A) name of an electric consumer;
(B) address of an electric consumer;
(C) length of service (including start date) of, and types of service used by, an electric con sumer; and
(D) means and source of payment for such service (including any credit card or bank account number) of an electric consumer.
Everything else would require a warrant.
ELECTRIC USAGE INFORMATION.—A governmental entity may only require the disclosure by an electric utility, third party aggregator, or other nongovernmental entity of information regarding the use of electricity by an electric consumer (including monthly usage data, data at a greater level of detail or specificity, and information about electric use by specific appliances) pursuant to a warrant issued based on probable cause, using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction.
No more pulling citizens’ electric bills without some articulable reason for doing so. The bill would also limit notification delays on these warrants to 180 days (although that period could be extended by a judge) and provides for suppression of evidence derived from warrantless access to energy usage information.
This will be a tough sell, considering law enforcement is very used to gathering up everything it can possibly construe as a third party record. Energy customers definitely know the energy they use is being tracked by their service provider. Even so, that knowledge is not the same as making the assumption that anything known by your electric company can also be accessed by law enforcement with almost zero paperwork.
A warrant requirement isn’t much of a hurdle for law enforcement. What this would do is prevent fishing expeditions utilizing electric bills in hopes of stumbling over someone maintaining a home grow operation. This could mean people who shop for gardening supplies won’t be having their electric bills constantly accessed by officers who assume the only hobby gardeners left are those in the marijuana business.
Still, it’s a good move by Wyden. The bills may not go forward with these clauses intact, but they’ll at least get legislators talking about the wealth of personal information law enforcement has warrantless access to.