Naperville Smart Meter Lawsuit Due Back in Federal Court

Source: Naperville Community Television (NCTV)

The Naperville Smart Meter Awareness (NSMA) group is in the news again, as a lawsuit they filed is due back in court this July.

The original lawsuit was filed in 2011 by the group, which repeatedly petitioned against the installation of the nearly 57,000 smart meters throughout town.

Last September, Judge John Z. Lee dismissed three of the four claims made in that suit, but the plaintiffs are now back with an amended complaint that provides more information about how data is collected by the smart meters, and what the potential use for that data could be.

Smart meter foes allege that the information collected goes beyond what is necessary for simple billing and service purposes, and that amounts to “unreasonable search and seizure” of customers.

Their attorney says they simply want to be allowed to keep their analog meters without having to pay additional fees to the city.

July 8th has been set as their day in court, but if the judge rules against the group, they still can continue their case based on an equal protection claim, which was not dismissed in the September ruling.

SkyVision Solutions Addendum

The NCTV characterization of the Naperville smart meter lawsuit in its report is viewed as generally accurate as an update on the current status of the case.

For those interested, a summary of selected factual allegations has been listed below as extracted from the latest filed complaint of NSMA 3rd Amended Complaint 10 Dec 14 .  It is expected that a reasonable person in objectively reviewing this list would agree that the City of Naperville smart meters constitute an unreasonable invasion of privacy for electric utility customers.

Summary of Selected Factual Allegations
Contained in the Latest Amended Complaint of the City of Naperville v. NSMA

A smart meter collects data consisting of granular, fine-grained, high-frequency type of energy usage measurements (“Interval Data”).

The analog meters previously installed by the City were not capable of collecting Interval Data.

The choice of interval collection frequency is entirely within the City’s discretion and can be changed at will by the City without customer notice or consent, and further, any such change can be performed remotely by the City.

Interval Data collected in 15-minute intervals by the City’s smart meters includes real power in kWh and reactive power in kVARh, and is unlike analog meter readings which reflect only aggregated energy data (total kilowatt hours used over an entire month).

The City’s collection and retention of Interval Data far exceeds what is necessary for delivery of electric service to its electric customers.

The City’s collection of Interval Data far exceeds what is necessary for customer billing purposes and account management.

To satisfy the City’s duty of calculating and collecting a monthly bill, the necessary electric energy-related data collection requirement is only one data point measured per month of energy usage in kWh (delivered) for its electric customers participating in the default/traditional fixed-rate pricing plan.

The City’s retention of its electric customers’ detailed Interval Data is not necessary for the purpose of billing those electric customers participating in the default/traditional fixed-rate pricing plan for their energy consumption.

The City retains all Customer Information (which includes electric customers’ highly detailed Interval Data) for a period up to ten years.  According to the City, after ten years the Customer Information is archived indefinitely.

The City’s Demand Response Program requires power consumption data at a level of granularity far finer than that required for billing purposes.

The City’s Demand Response Program is a voluntary program of the City in which its electric customers may choose to participate.

The City currently collects and retains Interval Data on all of its electric customers regardless of whether or not the customer is voluntarily participating in the Demand Response Program.

The City’s retention of its electric customers’ detailed Interval Data is unnecessary for its electric customers who chose not to enroll in the City’s Demand Response Program.

Only those electric customers who choose to enroll in the City’s Demand Response Program have consented to the City’s collection and retention of their Interval Data.

The City’s retention of its electric customers’ detailed Interval Data is also for the purpose of assisting the City’s law enforcement personnel in criminal and regulatory investigations.

Interval Data harvested and retained by the City via smart meters allows the City to observe human behavior within a home that is not knowingly exposed to the public, and that would ordinarily require an invasive physical presence.

According to the Energy Independence and Security Act of 2007 (“EISA”),

Section 1301: “It is the policy of the United States to support the modernization of the Nation’s electricity transmission and distribution system” which includes the “deployment of ‘smart’ technologies” and for such purposes as “metering.”

While the City’s decision to implement its NSGI program for the stated purpose of increasing energy efficiency, reducing emissions, and lowering electricity consumption costs may be rational, the City’s conduct with regard to its Interval Data collection and retention of Interval Data is arbitrary, irrational and inappropriate.

The basic framework for what energy-related data should reasonably and appropriately be collected by the City via a smart meter is outlined by the National Institute of Standards and Technology (“NIST”) as follows:

“In the current operation of the electric utilities, data taken from traditional meters consists of basic data usage readings required to create bills.  Under the Smart Grid implementation, smart meters will be able to collect other types of data.  Home power generation services will also likely increase the amount of information created and shared.  Some of this additional data may constitute personal information or may be used to determine personal activities.  Because of the associated privacy risks, only the minimum amount of data necessary for services, provisioning, and billing should be collected.”  (Emphasis added.)

The City’s decision to collect and retain the Interval Data of its electric customers which exceeds the “minimal amount of data necessary” for delivery of electric services and billing purposes is arbitrary.

The City arbitrarily decided to collect and retain Interval Data via smart metering which far exceeds data previously collected and retained by the City, and NSMA members have never given their lawful consent for such collection and retention.

The City’s smart grid creates a constant conversation between the City and the City’s electric customers revealing intimate personal details of the City’s electric customers such as when people are home and when the home is vacant, sleeping routines, eating routines, specific appliance types in the home and when used, and charging data for plug-in vehicles that can be used to identify travel routines and history.

The City’s collection and retention of Interval Data via the constant surveillance and search of NSMA members’ homes unreasonably reveals intimate details of the personal lives of NSMA members.

New “energy disaggregation” software technology allows for the breakdown of Interval Data collected via a smart meter into appliance-level itemized consumption.

Disaggregation companies are now emerging which offer such “energy disaggregation” services to utility companies like the City’s DPU-E.

One such disaggregation company, Bidgely, Inc., provides such “energy disaggregation” free-of-charge to utility companies like the City’s DPU-E.

No restriction exists to prevent the City from utilizing a disaggregation service provider’s “energy disaggregation” technology to disaggregate Interval Data collected and retained by the City which would allow an even more intrusive search of the intimate details of NSMA members’ in-home activities.

No restriction exists to prevent the City from employing disaggregation algorithms to disaggregate electrical energy measurements utilizing the retained Interval Data.

Sophisticated algorithms now exist which identify how much electricity even small appliances are using, and which require only Interval Data collected and retained via a smart meter without the need for any additional hardware.

Detailed analysis of Interval Data collected and retained via smart meters by the City over time can reveal significant personal details about the lives of electric customers via two principal mechanisms, specifically:  intuitive observation and disaggregation algorithms.

Intuitive observation is not speculation; rather, it represents reasonable inference based upon a review of load profile information where patterns are identified related to the level of power consumption, its intermittency, and its duration.

As an example of load profile information, the 15-minute interval usage numbers for April 26, 2013, utilizing Interval Data collected and retained by the City for a representative electric customer of the City, were graphed as shown in the figure below.

Naperville Resident Power Usage Apr 26 2013

Even without special software or other analytical tool, it is easy to infer human behavior from the graph above.  It is clear that persons within the home arose at 4:30 a.m., started their day with the typical activities of bathing and meal preparation.  It is also clear that there is no human activity between 8:30 a.m. and 3:00 p.m., and further that the usage reading abruptly drop off at 10:15 p.m. indicating that the family is retiring for the evening.  And while the above graph cannot determine exactly what appliances are being used, the graph clearly reveals discrete human behavior within the home, information which would be unobtainable by someone merely observing from the street.

By contrast, utilizing Interval Data collected and retained by the City for the same electric customer on April 28, 2013, there is no characteristic peak energy usage readings.  What the graph indicates is a levelized load with intermitted small peaks associated with a refrigerator and/or other automated appliance.  It is clear there is no physical human activity within the home indicating the home is unoccupied on this date.

Naperville Resident Power Usage Apr 28 2013

This “real life” graphic example of an electrical usage profile allows anyone to surmise the human activity and occupancy status for the home.  The graph below shows that the persons within the home were asleep during the early morning hours of July 26, 2013, until about 4:45 a.m. when there is then a spike in energy usage.  The persons within the home were not using air conditioning due to the reasonably cool summer weather experienced during the subject time period.  Ceiling fans were instead used for night-time air movement and cooling.  The persons within the home arose to go through a morning routine of bathing and getting dressed, etc., and were out of the house by 7:30 a.m., and did not return home for the remainder of the day or evening.

Naperville Resident Power Usage July 26 2013

The human behavioral inferences and home occupancy for this particular City electric customer were determined with no special software algorithms or consideration of the “reactive power” energy-related parameter as measured by the City’s smart meters in 15-minute intervals.  With back-end computer analysis and with the review of data covering a longer time period, additional behavioral determinations could be made.

Increased granularity of Interval Data provides more than ample detail for determining home occupancy, personal behaviors, and appliance usage with different levels of confidence. Hourly data can be used to determine occupancy and major appliance categories. Minute-by-minute data can be used to determine up to 10 different appliance loads such as refrigerator, air conditioning, heater, pool pump, dishwasher, clothes washer, microwave, dryer, etc.

Reactive power, which is measured by the City’s smart meters, in addition to real power, is useful in disaggregation as it helps differentiate loads sampled at lower frequencies.

The DOE states that “[a]dvances in Smart Grid technology could significantly increase the amount of potentially available information about personal energy consumption.  Such information could reveal personal details about the lives of consumers, such as their daily schedules (including times when they are at or away from home or asleep), whether their homes are equipped with alarm systems, whether they own expensive electronic equipment such as plasma TVs, and whether they use certain types of medical equipment.”

As described in the preceding paragraphs, the City, without consent, has forcibly installed smart meters on the homes of NSMA members which are performing an unreasonable search of such homes in violation of the Fourth Amendment of the United States Constitution.

The City, in addition to its function as an electric utility, also has its own police force, and there is no meaningful separation between such police and the utility within the structure of the City’s municipal government.

The City, through one of its police officials, has already confirmed that information obtained through smart meters will be utilized in the pursuit of the City’s police function.

The City has already misused its law enforcement personnel to accomplish the forced installation of smart meters on NSMA members’ homes without consent and without an administrative warrant in violation of section 8-1C-3.26 of the City of Naperville Municipal Code.

The City has utilized its law enforcement personnel to forcibly enter the private property of NSMA members without permission or consent, and without an administrative warrant in violation of 8-1C-3.26 of the City of Naperville Municipal Code.

NSMA members have only consented to the basic delivery of electricity to their homes.

NSMA members have not consented to, and have no wish to allow the City to seize intimate details about their personal lives and living habits, and the collection of such data far exceeds reasonable expectations as to what is required in order to provide satisfactory electrical service and bills to City customers.

As NSMA members have no meaningful choice in whether or not to provide extremely detailed personal data to the City, and further have not provided their consent, the subject smart meter installations constitute a violation of 42 U.S.C. § 1983, and represent an unlawful invasion of privacy as well as an unreasonable search and seizure in violation of the Fourth Amendment of the United States Constitution.

Because of the City’s misconduct and omissions, NSMA members have suffered, and will continue to suffer, injury and irreparable harm.

Prayer for Relief

NSMA respectfully requests:

  1. That this Court enter an injunction requiring the City to uninstall, upon an electric customer’s request, the City-installed smart meter from such customer’s residence, and to replace said smart meter with an analog meter at no additional cost to the customer.
  2. That this Court grant NSMA such other and further relief, including costs, as is just and reasonable.

——————————

[Update added July 8, 2015:  For an article providing perspective on Judge Lee’s July 7th decision on the invasion of privacy aspects of mandatory smart meter installations, please refer to:  ‘Smart meters are capable of capturing discrete details of behavior’ says Federal Judge; however…]

About SkyVision Solutions

Raising public awareness and finding solutions for smart grid issues related to invasions of privacy, data security, cyber threats, health and societal impacts, as well as hazards related to radiofrequency (RF) radiation emissions from all wireless devices, including smart meters.
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2 Responses to Naperville Smart Meter Lawsuit Due Back in Federal Court

  1. Pingback: Smart Meter Data at Crux of Arkansas Murder Case | Stop Smart Meters!

  2. Pingback: Naperville Smart Meter Lawsuit Due Back in Federal Court | Sacramento Smart Meter Awareness

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