by K.T. Weaver, SkyVision Solutions
I previously wrote an article regarding the case of Naperville Smart Meter Awareness, v. City of Naperville, where an amici curiae brief was filed by smart meter proponents explaining how government searches conducted using smart meters should be considered “reasonable.” [1] [2]
The legal brief [2] filed by the American Public Power Association (APPA), Edison Electric Institute (EEI), and National Rural Electric Cooperative Association (NRECA) is literally a joke.
In an attempt to bolster their case, the amici quoted a paper on multiple occasions entitled, “Remaking Energy: The Critical Role of Energy Consumption Data.” [3] For example, the amici state that “two scholars” have explained that personal information obtained about energy use is diminished as compared to that from other sectors such as health care and education. Specifically, the amici (smart meter proponents) selectively quoted from the paper [3] that:
“Personal energy consumption, or the kWh used by a customer’s appliances each month, if made public, is almost certainly less revealing than a medical file and less damaging than a school disciplinary history.” [emphasis added]
Note, however, the reference to monthly disclosure of energy consumption information as being “less revealing” or “damaging” than from other sectors. Well, … with regard to smart meters, we are not primarily concerned with “monthly” disclosure. We are concerned about granular data collected by smart meters such as hourly or subhourly, e.g., 15 minutes in Naperville, Illinois.
In fact, the amici then fail to quote page 1105 of the paper [3] by the “two scholars” that states:
“Although subhourly data could reveal occupancy patterns, which raises privacy and safety concerns, legacy or lagged hourly or monthly data likely does not raise the same concerns.” [emphasis added]
So the “two scholars” actually state that “subhourly data” as is collected in Naperville, Illinois, by smart meters does raise “privacy and safety concerns.”
In addition, although the smart meter proponents claim that the benefits of smart meters clearly outweigh the privacy rights of consumers, the “two scholars” aren’t quite so sure on how the courts will rule on this issue where they state on page 1117 of [3] that:
“… recent Supreme Court cases on other forms of technology have recognized the privacy implications of businesses’ increased capacity to store large amounts of personal data and accordingly have rewritten the standard for Fourth Amendment privacy expectations regarding GPS tracking and cell phones. Although it has yet to do so, it is unclear whether the Court will extend this line of reasoning to future energy consumption data cases.”
So the “two scholars” [3] quoted by smart meter proponents in the legal brief [2] state it is “unclear” on how courts will rule regarding privacy expectations and “future energy consumption data cases,” recognizing that there is legal risk in collecting more and more personal data on consumers.
We thus find that the paper used by the amici (smart meter proponents) in their legal brief doesn’t really provide much support for their position that privacy invading smart meters should be imposed on all. To the contrary, it is actually quite clear to an objective mind on how the courts should rule:
Warrantless collection of smart meter data (beyond that necessary for the basic delivery of electric service) without consent is an illegal and unreasonable “search,” regardless of whether or how that data is later analyzed or used. [4]
References
[1] “Government Searches Conducted Using Smart Meters Considered Reasonable by Industry Proponents,” SkyVision Solutions Blog Article, June 2017, at https://smartgridawareness.org/2017/06/04/government-searches-using-smart-meters-considered-reasonable/
[2] Amici Curiae Brief Filed in Support of the City of Naperville by the American Public Power Association (APPA), Edison Electric Institute (EEI), and National Rural Electric Cooperative Association (NRECA), May 19, 2017, available at https://skyvisionsolutions.files.wordpress.com/2017/05/appa-eei-and-nreca-amicus-brief.pdf
[3] “Remaking Energy: The Critical Role of Energy Consumption Data,” by Alexandra B. Klass and Elizabeth J. Wilson, 104 Cal. L. Rev. 1095, 1097 (2016); Minnesota Legal Studies Research Paper No. 15-28; available at https://ssrn.com/abstract=2659343
[4] Naperville Smart Meter Awareness Group Appeals to Higher Court on Fourth Amendment Violations, SkyVision Solutions Blog Article, February 2017, at https://smartgridawareness.org/2017/02/22/naperville-group-appeals-to-higher-court/
Smart Grid Awareness 
A joke, indeed!