Although many people claim that smart meters invade their privacy, it is unclear as to whether a compelling argument has yet been fully made that properly articulates an invasion of privacy assertion in a way that is understandable or convincing enough to persuade a sufficient number of legislators, governmental officials, court judges, or hearing officers. It is the purpose of this website posting to help formulate such a message.
The principal privacy and security concerns surrounding installation of residential smart meters are (1) smart meters will reveal the activities of people inside of a home by measuring their electricity, gas, or water usage frequently over time, and (2) that inadequate cyber security measures surrounding the digital transmission of smart meter data will expose it to misuse by authorized and unauthorized users of the data.
More specifically, the Electronic Privacy Information Center (EPIC), a non-profit group, has listed on its website the following potential privacy consequences of smart grid and smart meter systems:
Let us highlight just one item from the above list which has received little or no prior attention, “Tracking Behavior of Renters/Leasers.” When a different individual owns and pays the utilities other than the resident, such as in the case of a rental unit, apartment subletting, leasing, and so on, the landlord or property owner will likely have “authorized” and easy access to the smart meter data through a utility online portal website. The renter’s electricity, gas, and possibly water usage patterns and behavior could be monitored in near real-time. Hypothetically, a landlord could use information obtained from smart meter data to determine whether the tenant has broken a lease provision or for other more malicious purposes. The utility would likely claim that it has no concern or control over such activities, yet the utility is installing the technology that allows this avenue of privacy invasion to occur. [For a discussion describing the context of each item on the above list, refer to the following link: Potential Privacy Impacts.]
Although utilities largely dismiss the above privacy and security concerns when voiced by consumers, the author of this document asserts that smart meters do indeed represent an invasion of privacy that is unreasonable and unnecessary. Without quoting specific case law for purposes of this website posting, let it be said that the general legal criteria for demonstrating an invasion or privacy allegation consists of satisfying two discrete questions:
- The first question relates to whether an individual, by his or her conduct, exhibits a subjective expectation of privacy, i.e., has the individual shown that he or she seeks to preserve something as private.
- The second question pertains to whether the individual’s subjective expectation of privacy is one that society is prepared to recognize as reasonable, i.e., whether the individual’s privacy expectation, viewed objectively, is justifiable under the circumstances.
With regard to digital smart meters, the above criteria can be easily satisfied as shown in the paragraphs that follow.
Demonstrated Expectation for Privacy
Residential utility customers have a legitimate expectation to preserve individual and behavioral privacy with regard to energy-related or water consumption data collected by the utility. Credible government reports and security experts have explained that there are privacy concerns that the granular data collected by smart meters will reveal the activities of people inside of a home by measuring their usage frequently over time. Furthermore, there is deep concern that inadequate cyber security measures surrounding the digital transmission of smart meter data will expose such data to misuse by authorized and unauthorized users of the data. Residential utility customers have currently only surrendered a privacy interest to the extent necessary to account for monthly billing by the utility, unless otherwise explicitly granted. Normally, only one energy or water usage measurement per month is necessary for the billing process.
As an example, the figure below shows the type of information that can be gleaned from basic electrical power usage data from a smart meter without any special knowledge of appliance signatures, just intuitive observation of power consumption variations, which in turn infers human activity. Many people would prefer that this type of information not be available to other individuals or organizations under any circumstances.
Furthermore, with the help of software algorithms, much more information can be revealed from smart meter data. According to a 2009 report prepared for the Colorado Public Utilities Commission, entitled, “Smart Metering & Privacy: Existing Law and Competing Policies”:
- “A remarkable number of electric appliances can be identified by their load signatures, and with impressive accuracy. Researchers have all but mastered identification of the larger common household appliances such as water heaters, well pumps, furnace blowers, refrigerators, and air conditioners, with recognition accuracies approaching perfection. Ongoing work focuses now on the myriad smaller electric devices around the home such as personal computers, laser printers, and [different types of] light bulbs.”
- “High-resolution electricity usage profiles can expose individual behavior patterns through the identification of each specific appliance event within the household. Not just when a consumer is at home and when she is away, but further when she cooks dinner, watches TV, takes a shower.”
- “More detailed information gathered by smart meters may expose consumers to more targeted and nefarious physical invasions, since it may be possible to glean such information from the meter data as when residents are away from home, …”
- “What’s more, the sheer volume of the research and development in this area helps understand the field as a vector, one that points directly at more and more-detailed information collected concerning the activities of millions of people. While the motivations for this aggregation of data may be noble, the potential for serious privacy invasion is only growing, and so the need for care.”
Through the use of smart meters, utilities typically collect thousands of times more data than required to calculate a monthly bill and thus expose residents to unnecessary risks as described above.
Utilities and other smart grid advocates will sometimes make irrelevant and meaningless statements like:
- “Smart meters only know how much power you are using, not specifically how you are using that power.” or,
- “Smart meters do not record your personal activities.”
These are misleading, simplistic statements that avoid the issue. It is true that the smart meter is merely a conduit for collecting, storing, and transmitting energy-related usage data. Obviously, an inanimate object can’t “know” anything. That is not the issue. The issue relates to the incremental and granular type of data that is collected, stored, and transmitted by the meter to places where it can be intercepted, stored, and analyzed by others (real people) and software algorithms to be able to provide information about the usage patterns for individual appliances with a subsequent inference on the activities and occupancy of a home.
Smart meter data can be used by others either maliciously or inadvertently using existing or developing technology in an unauthorized fashion to infer types of activities or occupancy of a home for specific periods of time. It is also possible that such information can be sought for legal proceedings as evidence to prove or disprove certain propositions. For utilities or others to deny these legitimate concerns is evidence of obfuscation, essentially hiding the truth from the consumer.
Many residential utility customers simply do not wish to risk participation in such invasive technology as smart meters, i.e., they have exhibited an expectation to preserve behavioral privacy.
Expectation for Privacy is “Reasonable”
Viewed objectively, the expectation to preserve privacy as it relates to electrical, gas, or water usage data is reasonable for the following reasons:
- In the United States, the Public Utility Regulatory Policies Act, PURPA Section 111(d), as amended by The Energy Policy Act of 2005, contains language that requires state utility commissions and unregulated utilities to consider whether it is appropriate for utilities to offer customers smart metering for those who request it. The legislative intent was always that smart metering was to be considered optional. Therefore, it is reasonable for people not be forced to accept a smart meter in order to meter activities for which they have no desire to participate and do not want to accept the risks involved with smart metering.
- Consumer concerns are well founded; they are based upon credible sources of information including government reports and security experts. It is reasonable for individuals not to be forced to participate in a system which gathers more energy and water usage data than are required for billing purposes and which subjects them to higher privacy and security risks than traditional monthly meter reads.
- Although most case law would support a conclusion that there is not a societal expectation for privacy of utility energy and water usage records (in the aggregate), current case law is not fully applicable to the new technology where granular data transmitted by digital smart meters can “reveal discrete information” about individual appliance use or home occupancies.
- Given the “totality of the circumstances*,” in the case of smart meters collecting incremental and granular information, it is reasonable to consider the fact that the information is generated in the home, an area accorded specific textual protection in the Fourth Amendment of the U.S. Constitution. It is also reasonable to consider the fact that residential utility customers have no practical alternative to obtain electric, gas, or water service from another source. [* The use of this expression has its origin in case law where it is stated that the totality of the circumstances will be carefully weighed when determining the legitimacy of a privacy expectation.]
- Due to the fact that smart meters generally collect incremental, granular, fine-grained, high-frequency type of energy or water usage consumption information that is not required for customer billing purposes (for a consumer with a traditional fixed-rate pricing program), there is no business relationship basis for a utility to impose on the consumer the additional and unnecessary financial, privacy, and data security risks that are associated with having a smart meter that collects incremental usage information installed on one’s own property without consent. It is reasonable that the customer not be forced to disclose more electrical, gas, or water usage information than is required for the limited business purpose of generating a utility bill.
- Because the utility has not properly balanced the privacy interests of residential customers with the desires of the utility to modernize its infrastructure, it is reasonable that the utility provide analog usage meters to customers requesting them at no additional cost to the customer. Alternatively, it may be possible that a digital usage meter may be used if it can be assured that it is properly programmed to only collect data consistent with information required for billing purposes and reflects a reasonable balance of the privacy interests of the customer versus the desires of the utility to utilize a customer’s smart meter to help realize the full benefits of smart technology for operations and maintenance purposes.
Due to the foregoing reasons, it is clear that utility collection methods for incremental electricity, gas, or water usage data for residential customers using smart meters represent an unnecessary and unreasonable invasion of privacy.
Supplemental Discussion for Wireless Smart Meters
Although difficult to apply within the U.S. court system, there is also an argument to be made that the plausible threat of harm associated with radiofrequency (RF) emissions from wireless smart meters constitutes an “invasion of privacy.” Due to the loss of control felt by many consumers to be able to limit their exposure to RF radiation within their own homes, and on their own property, there may be a perceived negative effect on their sense of well-being and that their right to be secure in their own homes has been violated. RF radiation emissions from wireless smart meters, as they are interpreted as an intrusion on one’s ability to control his or her own health status, constitute an unreasonable “invasion of privacy.”
Epilogue on Constitutional Protections for Privacy
This section was added to discuss the topic of constitutional protections for privacy and why this website posting did not make use of such protections as the central theme for arguing how smart meters invade individual privacy. Certainly it is true that the Fourth Amendment to the U. S. Constitution states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches, shall not be violated …”
In fact, many state constitutions are even more explicit. For example, the Section 6 of Article 1 of the Illinois Constitution states: “The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications…”
In spirit, people are justified in claiming that their privacy rights are being violated by smart meters being attached to their homes without their consent. In a legal sense, however, court rulings have generally limited constitutionally guaranteed privacy protection rights to situations that have involved overt government intrusion. If the utility installing smart meters is also a government entity, then a Fourth Amendment allegation can be made. For a private utility, it is unlikely that Fourth Amendment protections would apply.
What is frustrating is that government-related public utility commissions for various states are allowing privacy invading smart meters to be installed by utilities without consumer consent. In addition, in many areas of the United States, Department of Energy grant awards are being used to help fund the deployment of smart meters. This could certainly be considered as a form of de facto government intrusion, but it is unclear on what basis one would construct a legal case around such a set of circumstances. [* See note below.]
Part of the purpose of this website posting is to educate people more broadly in terms of the type of full argument that needs to be made in order to have better success in convincing legislators, government officials, and others that smart meters invade privacy. An argument that relies narrowly on the language contained in the Fourth Amendment is not likely to be persuasive enough to effect a change in smart meter installation policies. At least it hasn’t so far.
The principal arguments made in this website posting can be made in any setting (or nearly any country). You have a legitimate expectation for privacy in your home that is being compromised by smart meters, and you can list a number of reasons why society would view your expectations as reasonable. Let’s hope there are still conscientious government officials, legislators, and even utility executives that will listen to rational and thoughtful arguments. The reasoning outlined in this website posting could also be adapted for use in both Federal and civil lawsuits, as applicable, but then you would need to be prepared for possible costly and lengthy legal proceedings.
* Note: Refer to updated article and report on how certain private utilities arguably become an “instrument or agent of the state” and must abide by Fourth Amendment provisions at https://smartgridawareness.org/2014/08/22/updated-report-on-how-smart-meters-invade-privacy/.