by K.T. Weaver, SkyVision Solutions
Because of the Internet of Things (IoT) and the deployment of devices like utility smart meters we are quickly losing our personal freedom and liberty and further heading toward Orwell’s 1984 [1]. For those aware of what is happening, we realize that “We’re being hunted,” and that, “We feel like prey.” This process must be reversed if we are to regain our rights as a free people.
“We’re Being Hunted.”
The reference to “We’re being hunted,” is one I found in a law review article [1] on the topic of “When Big Data Meets Big Brother.” In this article by North Carolina Journal of Law & Technology, it states:
In an age when people’s lives are constantly tracked, recorded, analyzed, and shared by private parties, the doctrine holding that “information knowingly exposed to private parties is unprotected by the Fourth Amendment,” now threatens to swallow whole the privacy guaranteed by the Fourth Amendment.
The “Internet of Things” refers to the prospect that nearly everything that can be connected to the Internet will be in the near future. According to one study, by the year 2020, more than 30 billion devices could be wirelessly connected to the Internet. Everything from televisions to refrigerators to electricity meters will be capable of recording data and transferring that data to third parties, with or without a user’s knowledge or consent.
Every website visit, every hyperlink click, every Facebook message sent, and every YouTube video watched is being tracked. Even offline activities, like shopping, driving, walking, and exercising are being tracked. In the words of the Jurassic Park ranger tracked by a pack of velociraptors, “We are being hunted.” Instead of velociraptors hunting Americans for lunch, Americans are being hunted for the purpose of advertising, or more generally, for the purpose of making money from their data. Only, unlike the trained Jurassic Park ranger, many Americans do not know they are being hunted.
Saying that Americans have a “choice,” when the only viable alternative is to opt out of all twenty-first century technology, is to say that American’s have a Hobson’s choice, or really, no real choice at all. Americans should not have to shed the protections of the Fourth Amendment to enjoy the benefits of the information age. [1]
Vanishing Fourth Amendment Protections
The Fourth Amendment to the U.S. Constitution ostensibly protects Americans against unreasonable searches and seizures. However, with the advent of “Big Data,” government increasingly circumvents the Fourth Amendment by effectively outsourcing surveillance to private parties and then uses what is called a “Third-Party Doctrine” to then gain access to that data in most cases without a warrant. The Third-Party Doctrine holds that the protections of the Fourth Amendment do not apply to information that a person knowingly exposes to others [1]. Thus, if you subscribe to a service that collects data, whether it be, e.g., phone, electric, or Internet-related service, the provider is considered a third-party to which you presumably were aware of data collection.
Regarding smart meters, this perspective of government outsourcing of surveillance is totally consistent with my article from last year, ‘Smart’ Meters Represent Industrial Profiteering and Government Sanctioned Surveillance, According to Study [2].
As stated in another article [3] by North Carolina Journal of Law & Technology:
Smart meters know when you’re sleeping. They know when you’re awake. They might even know whether you’re in the shower or watching TV. Utility companies are steadily installing these smart meters on consumers’ homes. Unlike traditional energy meters, which show a household’s aggregated electricity use each month, smart meters collect fine-grained, minute-by-minute data about electricity use and transmit it back to the utility at regular intervals. This data, when collected over time and analyzed, can reveal the activities and behavioral patterns of a household.
Traditionally, law enforcement would need a warrant to gain access to one’s home. However, smart meters take information about the activities that occur inside the home and put it in the hands of a third party — the utility company. Under the Third-Party Doctrine, that information loses Fourth Amendment protection and becomes subject to warrantless collection.
Under the Third-Party Doctrine, the type of information collected by smart meters would be protected if obtained without a warrant directly from a person’s home, but not from a third-party utility company. [However, see [4].]
Third-Party Doctrine subverts society’s expectations of privacy by classifying information as either wholly private (if secret) or wholly public (if disclosed). [3]
In the lawsuit involving Naperville Smart Meter Awareness v. City of Naperville [5], the Federal District Court extrapolated Third-Party Doctrine, and even though the City of Naperville as a government entity is not a “third-party,” the Judge “equated plaintiffs’ knowledge of the data collection with consent.” [3] As stated in the North Carolina Journal of Law & Technology article:
This rationale is an example of a “well-known logical trap” in which the knowledge of data collection is equated with the inability to expect privacy in the data. The knowledge-as-consent rationale is particularly counterintuitive in the case of utility meters, which are necessary fixtures for most people who use electricity. [3]
“We feel like prey.”
The reference to “We’re Being Hunted,” reminded me of an article [6] I wrote in 2015 quoting security and privacy expert Bruce Schneier, where he stated:
Here we are, producing this data — this big data land grab, to access it all, to analyze it all, to use it all, is not being buffered by a sense of privacy, of the personal nature of it.
When we’re private, we have control of our person. When we’re exposed, when we’re surveilled, we’re stripped of that control, we’re stripped of that freedom. We don’t feel secure. We don’t feel like we have something to hide. We feel like we’re under the microscope. We feel like prey. [6]
In the article where I quoted Bruce Schneier, I stated that the collection of granular electrical usage data by your utility and the subsequent “data mining” is an unwarranted invasion of privacy (or surveillance). It is not a privacy invasion that is necessary for the delivery of electric service. I further stated that you must resist this “big data land grab” or else be stripped of your freedom. [6]
Conclusion
This article has introduced the fact that a concept called “Third-Party Doctrine” is contributing to our loss of personal freedom and liberty. This loss is exacerbated by the deployment of the Internet of Things (IoT) and smart meters. As an overall consequence, “the Fourth Amendment fails to protect the home — the original impetus for the right to privacy.” [3]
In addition, as we saw from my most recent article, Smart Meter Deployments Result in a Cyber Attack Surface of “Unprecedented Scale” [7], smart meters and their associated data collections unnecessarily expose all of us to adversaries for the purpose of extortion, vandalism, hacktivism, and acts of terrorism.
There is some indication that the Supreme Court is beginning to recognize that the so-called Third-Party Doctrine has been applied beyond its original intent, especially where privacy invasions involve “Big Data.” A full discussion of this topic and the associated legal and constitutional issues is beyond the scope of this particular article, but stay tuned for further information in the future. In the meantime, please be aware that increased awareness by the public is important. “We’re being hunted,” and the more that consumers and the general public realize this, the greater the chance we will be able to foster the political change necessary for us to regain our personal freedom and liberty.
References and Notes
[1] “When Big Data Meets Big Brother: Why Courts Should Apply United States v. Jones to Protect People’s Data,” by Brad Turner, North Carolina Journal of Law & Technology, 16 N.C. J.L. & Tech. 377 (2015); available at: http://scholarship.law.unc.edu/ncjolt/vol16/iss2/4
[2] “Smart Meters Represent Industrial Profiteering and Government Sanctioned Surveillance, According to Study,” SkyVision Solutions Blog Article, January 2016, at https://smartgridawareness.org/2016/01/11/industrial-profiteering-and-government-sanctioned-surveillance/
[3] “The Home Out of Context: The Post-Riley Fourth Amendment and Law Enforcement Collection of Smart Meter Data,” by Natasha H. Duarte, North Carolina Journal of Law & Technology, 93 N.C. L. Rev. 1140 (2015); available at: http://scholarship.law.unc.edu/nclr/vol93/iss4/5
[4] It is broadly stated that the Fourth Amendment only protects against acts of government. As I have previously written (see link below), if an investor owned utility (IOU) is ordered by a state public utility commission to install privacy invading smart meters as part of a mandate or otherwise ordered to charge a penalty fee for those refusing smart meters, then the private utility arguably becomes an “instrument or agent of the state” and must abide by Fourth Amendment provisions. However, I am not aware of any lawsuits that are currently challenging smart meter deployments on that basis.
For more information, refer to “Updated Report on How Smart Meters Invade Privacy,” SkyVision Solutions Blog Article, August 2014, at https://smartgridawareness.org/2014/08/22/updated-report-on-how-smart-meters-invade-privacy/
[5] “Naperville Group Appeals Smart Meter Ruling to Higher Court,” SkyVision Solutions Blog Article, December 2016, at https://smartgridawareness.org/2016/12/24/naperville-group-appeals-smart-meter-ruling-to-higher-court/
[6] “Utilities ‘Very Excited’ about Mining Smart Meter Data and Invading Your Privacy,” SkyVision Solutions Blog Article, May 2015, at https://smartgridawareness.org/2015/05/19/utilities-excited-about-mining-smart-meter-data/
[7] “Smart Meter Deployments Result in a Cyber Attack Surface of Unprecedented Scale,” SkyVision Solutions Blog Article, January 2017, at https://smartgridawareness.org/2017/01/07/cyber-attack-surface-of-unprecedented-scale/
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