Public Utility's Recording of Home Energy Consumption Every 15 Minutes Is A "Search," Seventh Circuit Rules

An important ruling in the wake of Carpenter v. United States.


In a fascinating new decision, Naperville Smart Meter Awareness v. City of Naperville, the Seventh Circuit has held that a public utility commits a "search" of a home when it records every 15 minutes how much electricity the utility is providing the home, at least until the smart readers that enable this data collection come into general public use. At the same time, the court says, the utility's search of the home is reasonable and therefore permitted without any cause or suspicion. The Seventh Circuit's analysis relies on Carpenter v. United States for a significant step in its reasoning. Given that, the new decision is an interesting measure of where Fourth Amendment law may be going in the post-Carpenter era.

I. The Facts

First, the facts. The City of Naperville provides electricity to its residents. The City received a grant to update the old analog electricity meters with new digital meters. The old meters were the traditional kind that you have to read in person every once in a while. The new meters are digital and can be programmed to send back the energy consumption at the home at short intervals. The city installed the new meters at every home, and it programmed its meters to record consumption at 15 minute intervals and to keep the consumption records for three years. (It is unclear to me fro the options if the meters read only the overall amount of consumption over the most recent 15-minute period or the instantaneous rate of consumption every 15 minutes, but I'm guessing it's the former.)

A group of citizens sued the city, arguing that the city's recording how much energy homes were consuming violated the people's Fourth Amendment rights. Specifically, the citizens argued that if you know how much electricity a home is using every 15 minutes, you can get some ideas as to what is happening inside the home. You might be able to tell when people are home, when they're awake, and when they are doing things that require a lot of electricity such as cooking dinner or charging up their electric cars. This surveillance searched the homes and violated the Fourth Amendment, they claimed.

II. The Legal Ruling

In a decision by Judge Kanne, joined by Chief Judge Wood and Judge Bauer, the Seventh Circuit agreed that the city's close monitoring of how much energy the city was giving to homes was a "search" of those homes. Much of the reasoning was based closely on Kyllo v. United States, in which the Court held that directing a thermal-imaging device to get a temperature reading of the home was a search. Obtaining electricity readings of a home was a search much like using a thermal imaging device:

"Where … the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search.'" Id. at 40. This protection remains in force even when the enhancements do not allow the government to literally peer into the home. In Kyllo, for instance, the intrusion by way of thermal imaging was relatively crude—it showed that "the roof over the garage and a side wall of [a] home were relatively hot compared to the rest of the home and substantially warmer than neighboring homes in the triplex." Id. at 30. The device "did not show any people or activity within the walls of the structure" nor could it "penetrate walls or windows to reveal conversations or human activities." Id (quoting Supp.App. to Pet. for Cert. 39–40). Nevertheless, the Supreme Court held that law enforcement had searched the home when they collected thermal images. Id. at 40.

The technology-assisted data collection that Smart Meter Awareness alleges here is at least as rich as that found to be a search in Kyllo. Indeed, the group alleges that energy-consumption data collected at fifteen-minute intervals reveals when people are home, when people are away, when people sleep and eat, what types of appliances are in the home, and when those appliances are used.5 (R. 102-1 at 14.) By contrast, Kyllo merely revealed that something in the home was emitting a large amount of energy (in the form of heat).

The Seventh Circuit then noted Kyllo's apparent limitation to devices not in general public use. Digital meters are not in general public use, at least yet, so their use is a search today even if it may not be a search in the future:

Under Kyllo, however, even an extremely invasive technology can evade the warrant requirement if it is "in general public use." Id. at 40. While more and more energy providers are encouraging (or in this case forcing) their customers to permit the installation of smart meters, the meters are not yet so pervasive that they fall into this class. To be sure, the exact contours of this qualifier are unclear—since Kyllo, the Supreme Court has offered little guidance. But Kyllo itself suggests that the use of technology is not a search when the technology is both widely available and routinely used by the general public. See id. at 39 n.6 (quoting California v. Ciraolo, 476 U.S. 207, 215 (1986) ("In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet.")). Smart meters, by contrast, have been adopted only by a portion of a highly specialized industry.

At this point you're probably thinking, hey, wait a second. In Kyllo, the government brought a new tool to the home and used it to obtain the heat profile from inside the home without the homeowner's awareness. That's really different from the facts here. The public utility is just keeping records on what the public utility is doing. That is, the public utility is connected to the home, and the people inside the home are using electricity by drawing it from the public utility. At bottom, the utility was just monitoring how much electricity the utility was transfering to the home. In traditional Fourth Amendment law, that would make a big difference. That's the basic idea of the undercover agent cases and the third-party doctrine based on them: When you have a transaction with someone, the person you're transacting with is allowed to record what they're experiencing without their experience being a "search" of you.

But that's not an issue under Carpenter, the Seventh Circuit holds. Everyone in Naperville has to use a smart meter for electricity. Thus a person's interactions with the government public utility aren't voluntary, and the fact of the government recording its part of the transaction is still a search:

The third-party doctrine rests on "the notion that an individual has a reduced expectation of privacy in information knowingly shared with another." Carpenter, 138 S. Ct. at 2219. 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.

(Even there, the court is unsure the third-party doctrine is relevant: "As a threshold matter, Smart Meter Awareness challenges the collection of the data by Naperville's public utility. There is no third party involved in the exchange," the court notes.) As I understand the reasoning, the city's recording the city's transmission of electricity to the home is a "search" of the home because it might enable inferences as to what is happening inside the home that a user can't escape. As in Carpenter, the switch to a new technology enabled more surveillance than before and the extra surveillance makes the closer monitoring—even the government's monitoring of what the government's service is doing—a search:

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.

Next the Seventh Circuit rules that although the utility monitoring is a search, it is a reasonable search and is therefore constitutional. The court applies a reasonableness balancing approach instead of the warrant requirement because it is a non-criminal search program. Under that balancing approach, the court rules, the searches are reasonable. First, monitoring electricity use at 15-minute intervals "is far less invasive than the prototypical Fourth Amendment search of a home." The city isn't trying to collect evidence of crime, and it has promised that it won't disclose the data to anyone without a court order. On the other hand, smart meters are socially beneficial. They're cheaper because they don't require in-person visits and the encourage energy efficiency and the stability of the electricity grid. Thus the 15-minute-interval searches are reasonable.

III. My Initial Reactions

Fascinating case. A few tentative thougts about the opinion:

(1) A key part of the reasoning of the case seems to be the Seventh Circuit's acceptance of the idea that 15-minute-interval monitoring of electricity usage can reveal precise details of what is happening inside the home. There's no evidence in the record to support that, as far as I can tell. Rather, it seems to be a claim based on the plaintff's complaint, which in turn cites some academic journal studies. Procedurally, the appeal is from a denial of a motion to amend a complaint. The appellate court is therefore applying the Rule 12(b)(6) sufficiency standard and treating the complaint as true. Given that the search analysis hinges on how much information the smart meter can reveal, I found it a little odd that the court didn't emphasize this procedural posture. Instead, the court just presents its characterizaton of the findings of the academic journals as the truth about smart meters for every home.

Granted, Carpenter suggests that "facts" and "the record" may be somewhat antiquated concepts in the new Fourth Amendment world. If Carpenter can apply the Fourth Amendment to future facts as predicted by judges, I suppose Naperville can treat characterizations of journal articles in a complaint, as well as some stuff they found on the Internet (see footnote 5), as universal truth. But it seemed odd to me that the Seventh Circuit didn't struggle a little more with the uncertainty about what the smart meters do, or at least explain that this was just a claim from the complaint rather than something based on an actual search that occurred in this case.

(2) Another interesting aspect of Naperville is that I gather it's the recording of the information that matters. That is, the government is delivering electricity to each home at a certain rate. The data of how much it is delivering has always existed on the government's network. What makes it a search now, as I understand the opinion, is the cumulative effect of the government recording and saving that information at relatively short intervals for what the utility can learn about its users. Use of the meters "reveals details about the home that would be otherwise unavailable to government officials with a physical search" in the sense that the government now has collected the data in a way it can use, not in the sense that it wasn't there on the government's network before.

(3) An obvious question is whether the search analysis is a correct application of the principles of Carpenter. At least off the top of my head, I'm not sure there's an answer. It's an extension of Carpenter, but there's so much uncertainty in Carpenter that it becomes hard to say if the Seventh Circuit is applying it correctly.

(4) It's also interesting that the Seventh Circuit seems to think that if there is no third-party, then that is an argument for Fourth Amendment rights rather than against them. When the City argued the third-party doctrine, the Seventh Circuit at first says that the third-party doctrine may not be applicable at all because there is no third-party. This was disclosure directly to the government, not to a third party that the government then approached. This is a bit backwards, I think. The third-party doctrine is an application of the undercover agent cases, like Hoffa v. United States, in which the person is talking directly to a government actor. Your Fourth Amendment rights aren't violated when you share information directly to a government agent, the undercover agent cases say. The third-party doctrine just applies the same principle to disclosure to a private actor who then hands over the information to the government. In my experience, the critics of the third-party doctrine are usually still on board with the undercover agent cases. They just don't want the same principle to apply to disclosure to a private party not yet acting under government direction. Given that, you would think that the fact that the government here was just recording its own part of the transaction of the transfer of electricity to people was really about the undercover agent cases. It's somewhat tougher ground to challenge, I would have thought.

(5) The "general public use" part of Naperville is fascinating, too. Again, there are no facts brought out here. The ruling seems more a matter of judicial intuition, much like in Kyllo. But I gather its effect is to say that governments have to be careful in how they introduce smart meters, but that after they are rolled out there will be no limitations on their use. Right now, the court says, smart meters are pretty rare, so the government has to be reasonable and balanced and careful with what it does with smart meter data to make the collective searches reasonable. But after smart meters become common, they'll be in general public use and there will be no limitations on their use. Seems like an odd constitutional framework, but so it goes.

NEXT: Federal Court Rejects EPA Attempt to "Suspend" WOTUS Rule

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  1. “At the same time, the court says, the utility’s search of the home is reasonable and therefore permitted without any cause or suspicion.”

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    I don’t see how the search being reasonable makes it allowable without cause or suspicion. Rather, if it weren’t reasonable, it wouldn’t be permissible at all.

    But even being reasonable, you still need a warrant based on probable cause.

    1. Assuming in the first place it’s considered a search, of course.

      1. The forbidding of the search without warrant orients around stopping the powers from mucking in their opponents’ stuff looking for something to harm them with.

        As more and more of common life is monitored because The People choose to have modern services, that does not grant those in power the right to filch without a warrsnt.

        In otherwords, the people carry the expectation of privacy with them when theh move online. It isn’t privacy because you’re embarrassed your left testicle may be out. It’s privacy from those in power looking to harm political opponents.

        This transfers into the Internet, power monitoring, banking, any number of modern conveniences that require an organization to provide.

        It’s bad enough over the phone “metadata” sophistry, when fleshing out networks was exactly the kind of crap the Founding Fathers didn’t want the king to be able to do without a warrant.

    2. Just like you need a warrant for Terry stops, emergency entry to safe a life, protect evidence, etc? It says “and”…

    3. “I don’t see how the search being reasonable makes it allowable without cause or suspicion.”

      Agree but I think, in this case, the govt can say they have a ‘reasonable cause’ to monitor the usage to determine total usage, peak-usage, maintenance problems, etc.

      1. Well, yeah, it’s the “search” end I’d disagree with; The utility is providing you with electricity, they’re not entitled to know how much?

        But, IF it were a search, being reasonable wouldn’t excuse the lack of a warrant.

        1. You are, but as the OP says, it’s the 15 minute increments bit that put this over the top as far as the court was concerned. There’s a difference between knowing how much electricity a household uses, and knowing exactly when the household uses this electricity.

          1. Well here’s a hypothetical. Assume a more libertarian electric market where the price of electricity is in constant flux depending on demand, at 15 minute intervals. If the smart meters record at 15 minute intervals to correctly bill the customer, does that change the reasonableness?

            1. I think it does. The closer the governmental action parallels how third party commercial actors behave the more ‘reasonable’ it is.

              My biggest issue with this, is I think that the collecting of there records for administrative purposes is fine. But they should not be convertible to law enforcement purposes without a warrant. Much like tax returns are not available to law enforcement (except via a warrant).

              1. “But they should not be convertible to law enforcement purposes without a warrant.”

                I’m not sure this is a constitutional requirement. The President, for example, can request tax returns without a warrant.

    4. “But even being reasonable, you still need a warrant based on probable cause.”

      Is there a textual argument for that?

      The way I’ve always read it, you only need a warrant if not having a warrant is unreasonable.

      That said, the court precedents seem to interpret it differently, at least to (minimal) extent that they care about the text at all.

  2. So if this is a reasonable search, does this mean the data in question can be shared with law enforcement without restriction?

    1. This is the part of it that concerns me.

      A utility being allowed to know how you are using their service is reasonable. I don’t think that makes it appropriate to share with an outside entity though. A warrant should definitely be required.

      I don’t think, at least on the part of the utility, that it really constitutes a search though.

      1. If the information is held by the utility, it belongs to the utility. If it’s handed over voluntarily, that’s interfering with the utility’s use of its own information. Even in Carpenter there was a non-warrant procedure that compelled the phone company to hand over the information.

        1. But the utility is the government in this case.

  3. I only take issue with the 15 minute interval.

    I understand the need to determine peak-usage times–but at 15 minute intervals?

    What’s the govt’s argument that they have to monitor usage every 15 minutes?

    If the govt can’t make a ‘reasonable’ argument then they should not be allowed to do that.

    1. Forget that it’s the government for a moment. It’s the company providing the electricity. If they were providing you with electricity on average, but at any given 15 minutes they might fall short and have a brief blackout, would you care?

      I don’t think it’s hard for them to make a case for measuring electricity demand at 15 minute intervals, in order to have statistics they can use to extrapolate how often a given power demand might occur.

      Now, keeping it for several years? THAT is where my eyebrows start to go up, there’s no obvious business justification for retaining the data that long. Unless maybe they’re anonymizing it after a month.

      1. Power stations only need aggregate usage Individualized breakdown is only good for charging individual high users more at certain times of day, and that doens’t need 15 minute intervals.

        1. Not remotely true. There is so much more going on than just how many watts the home is pulling. A lot of it has to do with power quality management. Electric power is much more involved than people outside the industry realize (I’m in the industry).

      2. If it’s solely a business (often a state-sponsored monopoly), they’re generally required to keep the justification for billing you on file for several years. Esp. in my neck of the woods, where the state-sponsored monopoly, regional utility, since they’re auditable, and under extra scrutiny under the law for billing practices, meter reading practices and extra administrative complaint processes related to their guaranteed monopoly. I have found issues in the past with my bills that required going back several months to argue with them.

        I think the correct answer is that they should be required to keep that information private for me, but I think they fall in the “third party” definition, despite being a state-sponsored monopoly because they are not directly responsible to the governor…

    2. Standard commercial electric billing (as opposed to residential) is based on peak usage (15 minute average) not just total usage. It’s also based on a few other things as well, but that would be a few paragraphs to explain. The reason for this is all the equipment in the system has to be sized for peak power. I foresee this 15 minute recording setting the stage for a change in billing to be more like the commercial sector is billed.

      I’ll concur with Brett Bellmore on the 3 year data saving. There’s no need for that much logging. The only reason I can think of for it to log that much is that it doesn’t require that much space to do so (less than 1MB) and whoever designed the meter just went with what they could store.

      1. Peak power only matters at the power station and they shouldn’t be depending on house meters for that, it should be available at the power station itself. Meters only matter for billing individual houses.

        1. But if you had the individualized detailed power draw available, you’d be able to work up good statistics on how often you could expect a particular power draw to occur, and pick up on trends such as an increasing number of people charging their cars at exactly the same time, before you blew a transformer.

          But you could do that with anonymized numbers, I don’t think you need to record detailed data that’s traceable to a particular person for more than a month at a time.

          1. It depends on what the utilities are trying to do. More and more utilities are tracking cloud cover to predict usage versus supply of rooftop solar. In this case if they are tracking power usage as clouds move over an area, they not only need to know power usage but also GPS location.

            Knowing exactly where a user is, combined with when they use power can be used to predict a lot about how power will be used in the future, and it isn’t difficult to envision how this could be helpful. The issue I have is when those same records are converted to non-utility usage.

      2. Yeah, there are 35000 15 minute intervals in one year. Assuming an allowance of 10 characters in a simple text file (overkill), you’re looking at 10 bytes for each; let’s double that for time recording. One year is just 700 kB then.

        Electronics engineers have a tendency to put over-the-top features in embedded systems, even when unnecessary.

    3. IIUC quarter hour intervals provides a decent point at which one can evaluate the usage as a whole. I would note that ISPs monitor at much tighter intervals to make a similar determination.

      Not that I agree or disagree with the decision; only that this makes sense from a data analysis standpoint.

    4. I do IT work in the electric utility industry. The point to smart meters is not determining peak-usage times, the point to smart meters is the ability to do demand variant pricing on an hour by hour (or even more frequent) basis through out the day.

      I didn’t even realize before this article that Naperville had a municipal electric utility, I thought they were part of the service territory of Commonweath Edison, a private, publicly traded, regulated electric utility.

  4. This whole issue could probably go away if the utility offered a discount for collecting every 15 minutes instead of every 24 hours. Hardly anyone would pass it up even if it was $1 a month. (This assumes each smart meter can be programmed independently to collect data over a larger interval remotely.)

    1. Good idea but knowing the way govts work, they’ll probably make homeowners PAY to change the monitoring from 15 minutes to 24 hours. 🙂

  5. Are remotely-readable meters really rare? I was under the impression that they were widespread and had been for decades. (I’m not sure that is the same as “smart meters” in this context.)

    1. I live in the 7th (near Indy) and the meters began appearing within the last two years. Mine was installed about six months ago.

    2. I haven’t seen a non-remote readable meter in a long while. But I think it varies from place to place.

    3. It’s not the remote-readable meters that’s rare, its the 15-minute logging with three year storage.

      1. the question is about meters capable of doing such, not the details of what Naperville does with the data

  6. All the utility needs for billing is a once a month read.
    It does not need individual readings to determine maximum capacity or maximum load, it can get that data from its own distribution network.
    I would consider this a search, and an unreasonable one.
    Governments should always be constrained to the minimum data collection required.
    And of course, the real issue is that the government should not be in the utility business at all.

    1. That’s how I see it too. If a power station needs to know peak usage, it should have that information from its own power-generating equipment.

      The only use for meters is to break down individual bills. If they want to charge each house for power in certain intervals, such as 3-9 pm or 4-8am, they only need to take measurements at the beginning and end of those intervals. 15 minute intervals is bunk.

      1. The power station can’t know who is the peak user. The power station can’t know where in the circuit peak use is happening. Being able to measure peak use at the end points allows the utility to better maintain the distribution network.

        1. Bullshit. What are they going to do, cut power to one house at a time?

          1. Interestingly, yes. It’s long been common for large customers to voluntarily agree to substantially reduce power consumption for a period of time when the provider requests it. Conditions allowing the request, time of day, length of outage, etc., are negotiated in exchange for lower overall rates and specified by contract.

            Same principle is being extended to smaller private customers, sometimes by coordinating smart meters with smart appliances and automatically turning off air conditioners and refrigerators (for example) for 30 minutes at a time for a specified number of houses, thus being able to reduce load enough to avoid ‘rolling blackouts’ or full blackouts.

            So yes, one house at a time, no bullshit.

          2. Utilities already offer discounts to control your air conditioner during the day. As more system allow for it, they will be able to charge more specific pricing for usage periods, which will encourage people to buy appliances and other systems that either shut themselves off completely to reduce draw or allow the utility to do it remotely.

          3. No, they’re going to be able to schedule replacement of the transformer on your pole when it starts showing signs that it’s going to fail, instead of you having no power for a day and half when the transformer fails in the middle of the night.

  7. The public electric company needs your usage data to bill you. For now, at least, if you are a residential customer, it doesn’t bill you differently on your peak-period usage. It just needs your total usage. With that as background, if this is a “reasonable” search, why is it the most narrowly tailored solution to the billing problem? Why isn’t checking the meter at long intervals, as before, less intrusive, and thus more narrowly tailored, and more reasonable? In short, if there are 4A implications, is this a case for strict scrutiny review?

    1. Because the point to “smart” meters is to be able to vary electric rates according to total demand on an hour by hour or even minute by minute basis.

    2. For now, at least, if you are a residential customer, it doesn’t bill you differently on your peak-period usage

      Depends on where you are. For most of Chicagoland, ComEd offers that option

      1. It also sends texts before hot days offering rebates if you lower your electrical usage during peak hours, which is nice when it happens while you’re out of town like I just had happen

  8. If this does presage attempts to impose higher peak period billing rates on residential electric customers, it’s time to buy stock in every residential solar electric company you can find. Imagine the market leaps which will follow when folks in the South get to decide whether to pay twice (or more) for their air conditioning power, or go without. On the other hand, expect attempts to block by law any private solar escape hatch. Maybe it would turn out a risky investment.

    1. Seems like a bit of an overreaction.

      I don’t think people are going to be deciding between air conditioning or not. It’s more likely to be a question of how cool you set the temperature. Or whether you decide to run other appliances (washer/dryer/dishwasher) at the same time. Or whether you decide to plug your electric car in as soon as you get home.

      Even if some of those activities get shifted to later in the day or overnight, it will smooth out the demand and should result in more balanced pricing between peak and non-peak prices.

      1. It’s already happening. My utility paid me a flat fee to allow them to change the temperature in my house during “rush hour” (high) usage events. I can override it manually, but apparently the hassle of doing so prevents sufficient people from manually changing it that the decrease on the thermostat is worth the flat fee I got paid.

    2. The solar escape hatch is already wide open legally. Currently, most states require utilities to pay you retail rates for power you produce instead of wholesale rates. Google “net metering”.

  9. The “devices not in general public use” is a garbage standard. It not only allows but encourages the erosion of rights based on factors that have nothing to do with those rights.

    Consider the current example. Community A installed the sensors over objections of customers. It’s a “search” but they were allowed. Community B does the same. Under what possible reasoning could this suddenly become not-a-search just because Community C does it, too?

    re: the analysis of bullet 2 above. It is not true that this data has always existed. The electricity has always traveled on the government’s network but that is entirely different from data. What the government used to know was a) aggregate usage across multiple properties on an instantaneous basis and b) total usage by a single property over a relatively long period of time. It’s the equivalent of jumping from “I have a traffic monitor at the red light down the street plus I can look from the street at how much grass has grown through the gravel in your driveway” to “I put a traffic monitor right there at the end of your driveway”. Same traffic on the street; big jump in data.

  10. Why should an otherwise illegal search become considered legal merely because the technology involved becomes common? It seems to me the court should give individual consumers the right to resist the use of “smart meters” or at least to forbid the utility from polling them more than, say, twice a month without losing their electric service.

  11. Conversation I had with a police detective:
    Me: How did you know he was growing marijuana in his basement?
    Det: We pulled his bills from the power company. He was using high wattage for months and then switched to a 12-on/12-off cycle. That’s growth and then flowering.

    This was years ago, well before the meters in question were in circulation. But, I think the readers probably get the point.

  12. As an electrical engineer who has worked in some adjacent spaces there are several things I’d add to the comments discussion and to Prof. Kerr’s analysis.

    1) Turns out that at minute-by-minute reading of solely amperage draw and phase delay (inductive vs. reactive load) you can actually infer with extremely high accuracy not just what machines are on, but how they’re reacting. This goes slightly beyond current smart meters, but for a whole host of engineering reasons to do with the efficiency of the electric grid, the utilities would *love* to have that information, even in anonymized giant database form.

    1a) Many utilities that have installed smart meters that read at faster than 15 minute intervals through a device you voluntarily add to your home network to view power draw in much shorter intervals. I used this to diagnose a slow leak in my central air conditioning and get it recharged.

    2) There has been discussion that utilities would like to warn you if, say, your refrigerator was going to break soon so that you can replace it and stop drawing extra power. This would require generally monitoring their database. Some, I think, already do the lesser version of this, which is warning you when your usage dramatically increases or decreases.

  13. 3) This particular case is special because it appears the city is running their own utility. At least in my neck of the woods, the power company is a regional state-sponsored monopoly only allowed a certain fixed profit percentage. Do they get a pass on a “search?” They’re not “the state”, but they are, meaningfully. Can they be subpoenaed for this data despite Carpenter, since I live outside of the 7th Circuit?

  14. The legal test of recording usage every 15 minutes will come when someone reading this blog installs a battery bank or a capacitive storage unit to mask real-time usage and then “accidentally” buys power in a pattern that matches a grow operation or an illegal still.

  15. There’s something happening here, but what it is ain’t exactly clear.

    Paranoia strikes deep, into your life it will creep. It starts when you’re always afraid. It doesn’t end when the Seventh Circuit says you may have a point.

    I think it’s time we stop.

  16. Smart meters were always intended to (eventually) control energy use from outside the home. Owners could always put their own meter on their electric lines for their own purposes. The smart meter capable of sending a signal to the utility is the nose of the camel – once it’s in the tent, it’s just a matte of time before the whole damn animal is sitting on your lap. The object from the start was to enable the choking down of your current usage. This should be fought tooth and nail.

    1. Wait, your conspiracy theory is that the electricity company wants to sell you *less* energy?

      1. And charge you more money for it. Yes. That seems like a not-unreasonable conspiracy theory.

      2. i don’t know how it works in NL or England, but here almost no residential users are being charged more for peak power (as I said above, I have the option to do so here, which would lower my cost of non-peak power, but I don’t use it). And Americans use a lot of air conditioning.

        Yes, the power company would like to sell me less $.05 wattage it’s paying $.10 for

  17. That’s a misapplication of the “general public use” described in Kyllo. If technology is in general public use so *anyone* can can perceive activity, an objection of unreasonableness is generally unfounded. See Kyllo fn 6, “In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet.”

    The idea IS NOT that exclusive and extenseive government use of technology permits otherwise unlawful intrusion.

    Many home meters are visible from the road. In the recent past, utility workers entered onto property to read meters, even if a police officer wouldn’t be entitled to wander over there. Could neighbors, using binoculars (in general public use) check your meter every 15 minutes, thereby excusing the government to do the same? Or look in your windows? I think Kerr’s equilibrium adjustment theory explains why there is not a grand unified theory of the Fourth Amendment.

    Carpenter is more on point where specificity of information crosses a line, even if collection of data is itself not unlawful. On the one hand, measuring electricity is a risk voluntarily assumed because that’s the service contracted, like transactions recorded by a bank. Or it may be said that while the utility may collect that information, law enforcement needs a warrant to obtain such detailed reports.

  18. “On the other hand, smart meters are socially beneficial. They’re cheaper because they don’t require in-person visits …”

    I’m not sure the meter-reader union would agree with this opinion. You are automating away their livelihood.

  19. Naperville’s electric utility has a legitimate need for usage data for billing purposes. If they have time of day dependent rates then they need total consumption in each billing period. If that were the whole story then there would be no justification for the 15 minute reporting.
    But it isn’t the whole story. They operate a distribution network in the city and for planning purposes they have a legitimate need to understand how power is used in different parts of the city at different times of day. WIthout detailed information they would have to overprovision parts of their network which increases costs, but the 15 minute data would give a more precise picture of local consumption and maybe let them reduce costs without increasing risks to their consumers.
    “Measure at the power station” wouldn’t give this information, plus they buy power from the Illinois Municipal Electric Agency (IMEA) and, as far as I can tell, don’t have any generating capacity of their own. They will have metering in their substations but can’t get detailed geographical distribution data from that.

  20. > The data of how much it is delivering has always existed on the government’s network

    I’m not convinced of this point…at least not unless the network is meant to include the meters inside people’s homes and the idea is that *if* the government had been able to peek at what these meters said every 15 minutes it would then have the data.

    It seems to me all that existed on the government’s network before (assuming that we exclude government owned meters inside private homes when not being examined) was aggregate measurements (total electricity used by a home since last check or total electricity used by this neighborhood) not the fine grained measurements in question here.

    However, you are damn good at what you do and rarely sloppy so I presume I’m misunderstanding something about what you are saying.

  21. Regarding 4 isn’t the issue that the government is *mandating* the use of the smart meters. I mean presumably your reasoning wouldn’t allow the police to pass a law requiring everyone to install cameras in their homes constantly transmitting to the government and then say: it’s not a search because you sent the data to the government. Maybe what’s doing the work is that it’s a government requirement that one install such smart meters not a private utility demanding it in their normal course of business.

    And yes, what critics of the third party doctrine, like me, believe is that people choose a degree of risk when they share their information with certain other parties based on their perception of their loyalty/reliability and the government should be free to seek voluntary disclosure from such a party but if such parties refuse the government should have to get a warrant.

  22. There is a remark about overflying property at 1,000 feet (presumably Above Ground Level (AGL)). The federal government has nationalized the airspace above 1,500 feet AGL, approaches to landings and takeoffs below that and certain Military Operating Areas (MOAs) where aircraft routinely overfly at altitudes below 500 feet AGL.

    The airspace below 1,500 feet AGL has been the subject of litigation over the years and the operation of aircraft in that airspace might be construed as trespass. This will most likely arise in the operation of drones in that airspace.

    Would imagery captured at 1,000 feet AGL over someone’s property be admissible in a criminal proceeding?

    1. The Supreme Court held there was no violation of the 4th Amendment where agents viewed marijuana plants from 1,000 feet. That is the case referenced in Kyllo footnote 6 (which I provided the relevant quote from). cases/federal/us/476/207/

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