ARE SMART METERS CONSTITUTIONAL?

The United States Court of Appeals,7th Circuit, addressed this question last month.*

A city owns and operates an electric utility system that serves its residents. The city embarked upon a program to replace all electric meters with digital smart meters. With these meters, the city collects usage data every 15 minutes. Accordingly, the meter can not only show the amount of electricity usage but also when it was used. The Court noted "this data reveals information about the happenings inside a home."

Plaintiffs, a group of customers, asserted that smart meters disclose "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." They contended that collection of such data is an unreasonable search under the Fourth Amendment of the US Constitution and an unreasonable search and invasion of privacy under the Illinois Constitution. The Fourth Amendment protects the right of people to be secure in their persons, houses, papers and effects from unreasonable searches. The Illinois provision is similar, but also refers to invasions of privacy. The Court said that these assertions raised two questions: is data collection by smart meters a "search".. If so, is the search "unreasonable."

Is Data Collection A Search?

The Court stated that at the core of the Fourth Amendment is "the right of a man to retreat into his own home and there be free from unreasonable government intrusion." The Court discussed a 2001 US Supreme Court decision** that held law enforcement had searched a home when it collected thermal images of the home. The Supreme Court stated "Where...the Government uses a device that is not in general public use, to explore details of the home that previously have been unknowable without physical intrusion, the surveillance is a 'search.'

The Court of Appeals concluded that collection of data by the smart meters is a "search." It stated: "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 physical search."

Is The Search Reasonable?

The Court stated that if the search is reasonable, the city may collect data from the meters without a warrant. It noted that collection of the data is less invasive that the typical Fourth Amendment search of a home. It also said the city did not have a law enforcement intent because the data was collected and reviewed by its public utility personnel. The Court concluded that the search is reasonable. "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."

So, the Court summarized its holding: "this collection constitutes a search. But because of the significant government interests in the program, and the diminished privacy interests*k at stake, the search is reasonable."

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*Naperville Smart Meter Awareness
v. City of Naperville, No. 16-3766,
August 16, 2018

**Kyllo v. United States,
533 U.S. 27 (2001)

© Daniel J. Kucera 2018