Legal Circular Logic Prevails Regarding Utility Smart Meters In-home Searches

By Catherine J. Frompovich

The residents of Naperville, Illinois, have been protesting the imposition of AMI Smart Meters and also have gone to court to plead their U.S. Constitution Fourth Amendment rights.

The United States Court of Appeals For the Seventh Circuit, decided August 18, 2018 regarding the Naperville Smart Meter Awareness case No.16-3766 that utility company Smart Meters do search one’s residence but, using legal circular logic or thinking, ruled that even though the meters do search, that was acceptable since “the search is reasonable.”

Below are some of the related statements from that decision, which consumers may find extraordinarily interesting, if not amusing, in my opinion.

“This data reveals information about the happenings inside a home. That is because individual appliances have distinct energy-consumption patterns or “load signatures.” Ramyar Rashed Mohassel et al., A Survey on Advanced Metering Infrastructure, 63 Int’l J. Electrical Power & Energy Systems 473, 478 (2014). A refrigerator, for instance, draws power differently than a television, respirator, or indoor grow light. By comparing longitudinal energy-consumption data against a growing library of appliance load signatures, researchers can predict the appliances that are present in a home and when those appliances are used.”  [Pg. 2]

[Note there’s an electrical ‘fingerprint’ for each appliance.]

“The meters the city installed collect residents’ energy-usage data at fifteen-minute intervals. Naperville then stores the data for up to three years.”

[Pg. 3]  [Some meters collect more frequently.]

“Naperville Smart Meter Awareness (“Smart Meter Awareness”), a group of concerned citizens, sued Naperville over the smart-meter program. It alleges that Naperville’s smart meters reveal “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.” (R. 102-1 at 14.) The organization further alleges that collection of this data constitutes an unreasonable search under the Fourth Amendment of the U.S. Constitution as well as an unreasonable search and invasion of privacy under Article I, § 6 of the Illinois Constitution.2”   [Pp. 3-4]

“The Fourth Amendment of the U.S. Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Similarly, Article I, § 6 of the Illinois Constitution affords people “the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means.” We can resolve both the state and federal constitutional claims by answering the following two questions.3   First, has the organization plausibly alleged that the data collection is a search? Second, is the search unreasonable? For the reasons that follow, we find that the data collection constitutes a search under both the Fourth Amendment and the Illinois Constitution. This search, however, is reasonable. 4 A. The collection of smart-meter data at fifteen-minute intervals constitutes a search. “At the [Fourth Amendment’s] very core stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.” “Silverman v. United States, 365 U.S. 505, 511 (1961). This protection, though previously tied to common-law trespass, now encompasses searches of the home made possible by ever-more sophisticated technology. Kyllo v. United States, 533 U.S. 27, 31–32 (2001). Any other rule would “erode the privacy guaranteed by the Fourth Amendment.” Id. at 34. [Pp. 4-5-6]  [CJF emphasis]

[Doesn’t it sound like the Fourth Amendment just got scrapped?]

“The ever-accelerating pace of technological development carries serious privacy implications. Smart meters are no exception. Their data, even when collected at fifteen-minute intervals, reveals details about the home that would be otherwise unavailable to government officials with a physical search. Naperville therefore “searches” its residents’ homes when it collects this data.”  [Pg. 8] [CJF emphasis]

[Technology, either deliberately or unwittingly, is depriving humans of their sovereignty and rights!]

“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.”

[Pg. 9]

“Residents certainly have a privacy interest in their energy-consumption data. But its collection—even if routine and frequent—is far less invasive than the prototypical Fourth Amendment search of a home. Critically, Naperville conducts the search with no prosecutorial intent. Employees of the city’s public utility—not law enforcement—collect and review the data.” [Pg.10]

[The legal profession really just doesn’t get it!]

“With these benefits stacked together, the government’s interest in smart meters is significant. 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. We caution, however, that our holding depends on the particular circumstances of this case. Were a city to collect the data at shorter intervals, our conclusion could change. Likewise, our conclusion might change if the data was more easily accessible to law enforcement or other city officials outside the utility.”  [Pg. 12]

[What’s to prevent the city from deploying a new algorithm for quicker data collection, but consumers are unaware?]

“III. CONCLUSION

Naperville could have avoided this controversy—and may still avoid future uncertainty—by giving its residents a genuine opportunity to consent to the installation of smart meters, as many other utilities have. Nonetheless, Naperville’s warrantless collection of its residents’ energy-consumption data survives our review in this case. Even when set to collect readings at fifteen-minute intervals, smart meters provide Naperville rich data. Accepting Smart Meter Awareness’s well-pled allegations as true, this collection constitutes a search. But because of the significant government interests in the program, and the diminished privacy interests at stake, the search is reasonable. We therefore AFFIRM the district court’s denial of leave to amend.”  [Pp. 12-13] [CJF emphasis]

The above, in this writer’s opinion, is a perfect example of “legal circular logic or thinking.”

However, it does prove, though, what concerned Naperville consumers contend: “… this collection constitutes a search.”

Resource:

Your Smart Electricity Meter Can Easily Spy On You, Court Ruling Warns
https://motherboard.vice.com/en_us/article/j5n3pb/your-smart-electricity-meter-can-easily-spy-on-you-court-ruling-warns

Catherine J Frompovich (website) is a retired natural nutritionist who earned advanced degrees in Nutrition and Holistic Health Sciences, Certification in Orthomolecular Theory and Practice plus Paralegal Studies. Her work has been published in national and airline magazines since the early 1980s. Catherine authored numerous books on health issues along with co-authoring papers and monographs with physicians, nurses, and holistic healthcare professionals. She has been a consumer healthcare researcher 35 years and counting.

Catherine’s latest book, published October 4, 2013, is Vaccination Voodoo, What YOU Don’t Know About Vaccines, available on Amazon.com.

Her 2012 book A Cancer Answer, Holistic BREAST Cancer Management, A Guide to Effective & Non-Toxic Treatments, is available on Amazon.com and as a Kindle eBook.

Two of Catherine’s more recent books on Amazon.com are Our Chemical Lives And The Hijacking Of Our DNA, A Probe Into What’s Probably Making Us Sick (2009) and Lord, How Can I Make It Through Grieving My Loss, An Inspirational Guide Through the Grieving Process (2008)

Catherine’s NEW book: Eat To Beat Disease, Foods Medicinal Qualities ©2016 Catherine J Frompovich is now available