Dan Churney Jul. 13, 2015, 11:02am

The installation of smart electric meters by a city-owned utility does not amount to a violation of a homeowner’s constitutional rights against warrantless search, no matter how much data the meters might collect or transmit about a homeowner’s electrical use, a federal judge has ruled.

In federal court in Chicago, U.S. District Judge John Z. Lee rejected the argument brought by a grassroots group opposed to the installation of smart electrical meters in west suburban Naperville that the meters pose risks to privacy and health.

The group, however, did receive a green light to continue with an equal protection complaint against the city of Naperville over concerns the city had singled out its members by denying them the ability to retain their old electric meters, while allowing others to do so.

Naperville Smart Meter Awareness (NSMA) is a not-for-profit corporation whose mission is to “educate, engage and empower families, friends and neighbors to advocate for a fiscally responsible and safe utility meter solution in Naperville.”

In January 2012, the Naperville Department of Public Utilities, through which the city provides all residential electrical service, began replacing analog electrical meters with so-called smart meters. The smart meters come equipped with transmitters that can send electrical usage data to nearby network access points, which then relay the data to the Department of Public Utilities. Analog meters record consumption by month, while smart meters can record every 15 minutes.

Residents can choose to have smart meters without transmitters, which must be read manually by a meter reader every month and still record every 15 minutes. There is a one-time $68.35 installation fee, followed by a monthly fee of $24.75.

As the city began installing smart meters, NSMA filed a complaint in federal court, contending that recording electrical usage every 15 minutes can reveal “intimate details about the personal lives and living habits of NSMA members,” such as when they are away from home or sleeping, as well as when they are using different appliances. Also, NSMA asserted the city can collect data in shorter intervals – as short as every five minutes – and “energy disaggregation” software can break down data to the appliance level. All this allows the city to gather data beyond the information to which residents have consented and which exceeds “what is necessary for customer billing purposes.”

Armed with this data, city employees and officials, such as police, could use the information to intrude on privacy, according to NSMA. Further, NSMA claimed the radio waves emitted by the transmitters can cause a variety of ailments, such as heart palpitations, sleep disorders and headaches.

NSMA wants a judge to order the city to make analog and non-wireless meters available at no extra cost upon customer request.

The city countered NSMA’s complaint with a motion to dismiss, which was granted. NSMA then filed two amended complaints, each of which were also dismissed. Leave to file a third amended complaint was filed Dec. 10, with the city opposing. Lee addressed the motion for leave to amend on July 7.

In the motion for leave, NSMA alleged the city’s collection of smart meter data is an unreasonable search, violating the Fourth Amendment to the U.S. Constitution and is an unreasonable search and invasion of privacy, violating the Illinois Constitution. Further, NSMA claimed the city has subjected NSMA members to retaliation and has refused requests by NSMA members to retain their analog meters for medical reasons, while granting similar requests from non-members, thus denying equal protection of the law as guaranteed by the 14th Amendment.

The city is not objecting to the equal protection count of NSMA’s complaint, so Lee only considered the alleged violations of the Fourth Amendment and Illinois Constitution. Lee found no grounds for either.

Lee stated that even if smart meters can do what NSMA says they can do, NSMA has not shown the city is using, or plausibly would use, the information so collected in a way that would constitute an unreasonable search or privacy invasion, under either the Fourth Amendment or the Illinois Constitution.

“NSMA incorrectly equates possibility with plausibility,” Lee observed. “NSMA’s attempt to hinge a Fourth Amendment claim on theoretic possibilities without presenting any allegations about what the City is actually doing with the data is futile.”

Lee went on to say that at any rate, data collected by the city is data NSMA members voluntarily turned over to the city by agreeing to use city-supplied electricity.

Lee pointed out NSMA’s proposed third amended complaint “echoes” the allegations in the previous complaints, without putting forth “new substantive facts” to support those allegations.

However, because the city did not challenge NSMA’s claim to unequal protection, NSMA’s motion for leave to file the third amended complaint was granted on that basis. The third amended complaint was due in court July 15.

Chicago lawyer Doug E. Ibendahl is representing NSMA. Naperville is represented by the city’s in-house attorneys – Margo L. Ely, Robert R. Wilder and Kristen J. Foley.

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