Appeals Court: City-Owned Utility Pulling Electric Use Info Every 15 Minutes Is A Search

from the but-an-acceptable-search-apparently dept

An oddball, but interesting, decision [PDF] flowing from the Supreme Court’s Carpenter ruling has been issued by the Seventh Circuit Court of Appeals. While the Carpenter decision centered on the long term collection of historic cell site location information, the ruling could be applied to a number of situations where records created by citizens are stored and housed by other parties and accessible without a warrant.

This case deals with smart meters, issued by the government (via the public electric utility) to track electric use in citizens’ homes. With the old meters, readings were performed by utility employees every few weeks. The new smart meters send back info on electric use every fifteen minutes. This frequency was chosen by the City of Naperville government. It could have gone with something less intrusive, but it chose this method instead.

The city was sued by citizens opposed to being snooped on by the new smart meters. The plaintiffs argued the frequent readings allowed to government to make a great deal of inferences about activities inside citizens’ homes, based on the rolling delivery of energy use amounts. The district court tossed the case. So does the Appeals Court, but only after making some interesting findings. (via Orin Kerr/Volokh Conspiracy)

First, the court rules that the government’s use of smart meters to retrieve information about electric usage is actually a search under the Fourth Amendment. To do that, it looks to the Supreme Court’s Kyllo decision, which dealt with the warrantless deployment of thermal imaging scanners by law enforcement. That decision found deployment to be a search, even if officers never physically entered the residences being scanned. Enough could be inferred about inside activity from the thermal images to be considered a search under the Fourth Amendment. The Appeals Court says the same rationale applies here.

The technology-assisted data collection that Smart Meter Awareness alleges here is at least as rich as that found to be a search in Kyllo. Indeed, the group alleges that energy-consumption data collected at fifteen-minute intervals reveals when people are home, when people are away, when people sleep and eat, what types of appliances are in the home, and when those appliances are used. By contrast, Kyllo merely revealed that something in the home was emitting a large amount of energy (in the form of heat).

This search, performed by smart meters, has more privacy implications than the rough thermal imaging in Kyllo.

What’s more, the data collected by Naperville can be used to draw the exact inference that troubled the Court in Kyllo. There, law enforcement “concluded that [a home’s occupant] was using halide lights to grow marijuana in his house” based on an excessive amount of energy coming from the home. Id. at 30. Here too, law enforcement could conclude that an occupant was using grow lights from incredibly high meter readings, particularly if the power was drawn at odd hours. In fact, the data collected by Naperville could prove even more intrusive. By analyzing the energy consumption of a home over time in concert with appliance load profiles for grow lights, Naperville law enforcement could “conclude” that a resident was using the lights with more confidence than those using thermal imaging could ever hope for. With little effort, they could conduct this analysis for many homes over many years.

The court notes this isn’t a Third Party Doctrine case, unlike the Supreme Court’s Carpenter decision. This argument, raised by the city in its defense of its info collection, is unavailing. There is no third party. This dismantles the city’s argument the data collection was somehow a “voluntary” exchange. The information flows from citizens’ houses directly to the government. There’s nothing “voluntary” about electric service provided by the government, and that’s where the Carpenter decision comes in.

The third-party doctrine rests on “the notion that an individual has a reduced expectation of privacy in information knowingly shared with another.”But in this context, a choice to share data imposed by fiat is no choice at all. If a person does not—in any meaningful sense—“voluntarily ‘assume the risk’ of turning over a comprehensive dossier of physical movements” by choosing to use a cell phone, Carpenter, 138 S. Ct. at 2220 (quoting Smith, 442 U.S. at 745), it also goes that a home occupant does not assume the risk of near constant monitoring by choosing to have electricity in her home. We therefore doubt that Smith and Miller extend this far.

Ultimately, the court sides with government. Unreasonable searches need warrants. They’re permission slips for things we don’t want our government doing without permission from an impartial judge and without laying out the justification for the search. In this case, the flow of data to the government (in exchange for the flow of electricity from the government) is a search, but it’s a “reasonable” search. The appeals court says that the government’s interest in modernizing the grid and energy deployment is worthwhile and done “without prosecutorial intent.” Law enforcement does not have constant access to this info. Only the utility does. Presumably, additional paperwork would be necessary if law enforcement does want access, but the court doesn’t see anything on the record that suggests public utility shoulder surfing by police officers.

Smart meters allow utilities to reduce costs, provide cheaper power to consumers, encourage energy efficiency, and increase grid stability. We hold that these interests render the city’s search reasonable, where the search is unrelated to law enforcement, is minimally invasive, and presents little risk of corollary criminal consequences.

Somewhat strangely, the court decides that the more smart meters the government rolls out, the less of a Fourth Amendment issue it becomes.

Under Kyllo, however, even an extremely invasive technology can evade the warrant requirement if it is “in general public use.” While more and more energy providers are encouraging (or in this case forcing) their customers to permit the installation of smart meters, the meters are not yet so pervasive that they fall into this class. To be sure, the exact contours of this qualifier are unclear—since Kyllo, the Supreme Court has offered little guidance. But Kyllo itself suggests that the use of technology is not a search when the technology is both widely available and routinely used by the general public.

In the court’s own words, now that airplanes are a routine part of daily life, stuff viewable from overheard has a diminished privacy interest. Apparently, the same thing applies to the continuous flow of electric usage data to government utilities. Once smart meters are no longer a niche item, Americans will just have to get used to the government drawing inferences from the multiple data points it gathers daily.

This seems at odds with the Carpenter decision (which partially stems from the Supreme Court’s ruling on cellphone searches). The more pervasive the tech is, the more privacy implications it raises. Once cellphones became ubiquitous, the government could no longer be allowed to treat them as tracking devices loaded with personal information that could be accessed without a warrant.

The tech in this case may be owned by the government, but the same thought process should apply. Turning peoples’ homes into a steady stream of data points via the rollout of smart meters should weigh against the government’s easy access, rather than be treated as a supporting argument for it. But that’s the way the Supreme Court precedent sits right now, which makes for some very inconsistent Fourth Amendment applications.

Filed Under: , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Appeals Court: City-Owned Utility Pulling Electric Use Info Every 15 Minutes Is A Search”

Subscribe: RSS Leave a comment
35 Comments
hegemon13 says:

Great.

So, we have two lizards that require timed heat and UV lamps on a day/night cycle. I imagine the energy profile would look very similar to other, less legal requirements for timed day/night lighting. Does that mean my legal pets provide the police probable cause to bust down my front door? Because if seeing someone walking out of a gardening shop is probable cause (see Johnson County, KS Sherriff), it’s a certainty this data will be similarly misused, abused, and misconstrued.

Anonymous Anonymous Coward (profile) says:

Re: Great.

Wet tea leaves are the same as marijuana to some cops. Why wouldn’t they stretch their imaginations in your case? Hey, there is even a so called equal protection clause in the Constitution that states "…nor deny to any person within its jurisdiction the equal protection of the laws." and with the Supreme Court saying that law enforcement officers don’t actually have to know the laws they enforce, I am seriously surprised we are not all in jail.

/s

JoeCool (profile) says:

Re: Re: Great.

When I was a kid, you found grow-bulbs in any store next to the regular bulbs. They recognized that many people have plants that NEED extra light in winter. I used to grow avocado trees in small pot inside during the winter (unless you live is SoCal or Florida, you can’t leave them outside in the winter), but inside, they don’t get enough light and start to look more like sickly vines that trees. But now no one carries grow-bulbs, and even if they did, I’d be scared to buy one these days since stores that DO often report buyers to the police. This is the state of police in the US today: average people scared to grow avocados indoors in the winter for fear SWAT will be crashing through the walls.

Anonymous Coward says:

Weak justification

Smart meters allow utilities to reduce costs, provide cheaper power to consumers, encourage energy efficiency, and increase grid stability.

That’s all very vague. How does having the 15-minute usage data from each customer, as opposed perhaps to 1-minute data from each substation, help with that?

Most areas with time-of-use metering use buckets much wider than 15 minutes. Ontario Canada divides the day to on-peak off-peak and mid-peak, each being many hours long. Billing would be exactly the same if they totalled each bucket as it ended. Or summed and transmitted multiple days worth of buckets at a time.

Anonymous Coward says:

Re: Weak justification

. How does having the 15-minute usage data from each customer, as opposed perhaps to 1-minute data from each substation, help with that?

Well, if you are the utility, house level too fine grained for making decision about power management. The load on a substation distributing to houses provides more than enough resolution for that. If you are the government, well collect it all and figure out how to make use of it afterwards.

Ben says:

Re: Weak justification

Our water company does real-time monitoring of customer’s usage and adjusts their pumps. When they rolled out this change, shortly after, they reduced everyone’s bills because of the money saved.

Being able to see how much is being used is quite different than measuring a general increase in demand.

Without a smart grid, the main usage of higher resolution power usage sampling is faster reaction times to outages, better planning, and better scheduling of maintenance.

Anonymous Coward says:

Re: Re: Weak justification

Sorry, I’m still having trouble seeing this. How does reading each power meter in realtime help them adjust pumps? Is the realtime and historical per-pump data not enough?

Without a smart grid, the main usage of higher resolution power usage sampling is faster reaction times to outages,

Ehh… okay, they can detect a house-specific outage that way, but the usual pattern is that a rodent electrocutes itself on a transformer, and a per-transformer liveness check is enough to detect that. If one house goes out there’s a good chance it’s not even the company’s fault.

better planning, and better scheduling of maintenance.

Can you explain? Are we talking about non-residential meters here? Residential’s got to be pretty easy to plan and I don’t get how per-house data helps with maintenance scheduling.

Anonymous Coward says:

Re: Re: Weak justification

The amount of power a house uses is insignificant as far as management of generation is considered. The local substation is more than fine enough for that. This smells like we have the ability to gather the data, so why not do it and figure out how to make money from it later.

All that data is just another tempting haystack for the police to lust after, and hackers to go after.

Christenson says:

Re: Re: Re: Weak justification

The problem with “one house being insignicant” is as follows:
The cost of power generation varies with both time of day and how quickly it needs to be changeable or dispatchable. Power companies spend quite a bit of money on “voltage regulation” — small changes to the power system so that in spite of changing loads, the voltage is roughly constant. I’m deliberately ignoring power factor or reactive power here.

As houses acquire dispatchable loads (those that don’t care all that much if the work they do is delayed a bit), and sch things as solar panels, coordinating large numbers of houses starts to have significant financial effects.

TRX (profile) says:

Re: Re: Weak justification

My water utility uses a number of large towers and gravity feed; tap pressure runs 45 to 55 PSI depending on water level. The tanks are periodically topped up by the pumps, sort of like giant toilet tanks. And if the power goes out, the tanks have enough water for a few days (summer) or week or more (winter).

I don’t know when the city runs the pumps, but with such a long fill window, there’s no reason not to run them only when the grid load or utility rates are lowest.

The local water table is so high that sewage must be pumped, though. Each pumping station has a prominent exhaust stack, so I assume each has its own backup power.

Anonymous Coward says:

Re: Not voluntary?

Is there some law that says you have to have electric service?

In many areas, yes.

Tim and Kerr went out of their way to not mention what state Naperville’s in… which seems to be Illinois, and I couldn’t find details on it. There are lots of references saying one cannot disconnect electric service in Florida.

Anonymous Coward says:

Re: Re: Re: Not voluntary?

"Sort of?"

Some counties will not allow you to be disconnected from their utilities. Usually this happens in rural areas closer to town. In town, of course, it’s most likely that it’s illegal to disconnect from the public utility system completely.

They could be wrong. It doesn’t help that most of the references I can find are on doomsday-prepper-type sites, and nobody cites the laws. If they’re right, it’s illegal and not "sort of" illegal.

TRX (profile) says:

Re: Not voluntary?

In my town, yes. They’ll send the police to remove you from your own property if you don’t have a meter and account.

It costs a bit over $75 a month for the “meter fee”, even if it’s not connected to anything.

They really, really don’t want anyone going off the grid… and at the local electric rates, it would actually make economic sense to go solar, even amortizing panel degradation, occasional cleaning, and eventual replacement.

That One Guy (profile) says:

"The technology we FORCED you to use means no warrant needed."

Under Kyllo, however, even an extremely invasive technology can evade the warrant requirement if it is “in general public use.” While more and more energy providers are encouraging (or in this case forcing) their customers to permit the installation of smart meters, the meters are not yet so pervasive that they fall into this class. To be sure, the exact contours of this qualifier are unclear—since Kyllo, the Supreme Court has offered little guidance. But Kyllo itself suggests that the use of technology is not a search when the technology is both widely available and routinely used by the general public.

The ‘logic’ on display here strikes me as insane, with some really nasty implications.

Hypothetically speaking if the government managed to slip through a bill that required people to carry devices that tracked them in real time then by the argument presented here there would be no warrant requirement for that data, because the devices were widely used, with no need to consider that it was only in use by everyone because they had no choice in the matter.

With the argument presented here government agencies could bypass warrant requirements simply because people use tech that has the potential to provide data, even when that tech was legally required.

As noted in the argument advances in technology that can provide otherwise private data should increase concerns about access to that data, not bypass legal protections against it’s acquisition.

FatBigot says:

What about the remote cut-out switch?

Is the “smart meter” in the US the same as in Europe? The European smart meter specification includes a remote cut-off device. No-one in the mainstream media in the UK has picked up on this point, and the exact conditions under which it can be operated, and by whom, have not been published. Rather a vague impression that it will be used to control delinquent bill payers has been allowed to lodge in the public view. But it is a step change, instead of someone having to get a warrant to enter your property to remove the supply company’s fuse, it can be done instantly, remotely and in bulk.

For distribution network control it is great: As a cloud obscures the sun over a solar plant you can cut off the exact load required to balance generation & demand. I foresee higher tariffs to be immune to this, and special registration to essential users, e.g. diabetics. I expect that mysteriously politicians and other low-life will become “Essential users”.

The respected security researcher Ross Anderson has posted about the severe risks these things produce:
https://www.lightbluetouchpaper.org/2012/09/17/the-perils-of-smart-metering/

I suggest that someone gets hold of the detailed specification of the American smart meters, and looks closely to see whether they too include a remote cut-off switch. If they do, the who will operate it, under what conditions and with whose authorization?

Add Your Comment

Your email address will not be published.

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Loading...