Noting their conclusions could change based on what other cities and utilities may choose to do with information gleaned from homeowners’ energy use, a panel of federal appeals court judges has found Naperville can continue collecting and storing electricity usage data transmitted directly by so-called “smart meters,” even though the data harvest essentially amounts to a governmental search under the Fourth Amendment.
“To this court’s knowledge, using too much electricity is not yet a crime in Naperville,” the judges wrote. “And Naperville’s amended ‘Smart Grid Customer Bill of Rights’ clarifies that the city’s public utility will not provide customer data to third parties, including law enforcement, without a warrant or court order.
“…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,” the judges added. “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.”
On Aug. 16, a three-judge panel of the U.S. Seventh Circuit Court of Appeals upheld a federal judge’s decision to deny a group of Naperville residents, identifying themselves as “Naperville Smart Meter Awareness,” the chance to continue with their lawsuit against one of Illinois’ largest cities, alleging the west suburban city had violated their constitutional privacy rights.
The opinion was authored by Seventh Circuit Judge Michael S. Kanne, with judges Diane P. Wood and William J. Bauer concurring.
The case had landed before the appeals court after the Smart Meter Awareness group had appealed the decision of U.S. District Judge John Z. Lee to deny them the chance to amend their case, after it was dismissed.
The Naperville residents had initially filed suit in 2011, claiming Naperville’s decision to roll out a so-called “smart meter” program without giving residents’ the opportunity to opt out essentially violated their rights against illegal search.
The Naperville Department of Public Utilities, the agency through which the city of Naperville supplies electricity to all city residents, began installing the smart meters in 2012, replacing all analog meters at homes throughout Naperville. The smart meters are 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. While analog meters gave the city a monthly read on residents’ electrical usage, smart meters allow the city to collect usage data every 15 minutes.
NSMA contended collecting usage data every 15 minutes can reveal “intimate details about the personal lives and living habits” of Naperville residents, such as when they are home and what appliances they may own, and when they use them.
NMSA said this amount of potentially easily accessible data could allow city officials – including police – to peer into homes without ever even pulling up to the front curb.
In 2015, however, Lee first dismissed NMSA’s complaint, finding the electrical usage data collection did not equal an illegal search of their homes.
After Lee ultimately denied NMSA the ability to continue their case in 2017, the group appealed.
At the Seventh Circuit, the judges conceded NMSA is correct to label the data collection a “search,” under the terms of the U.S. Constitution’s Fourth Amendment.
“The ever-accelerating pace of technological development carries serious privacy implications,” Judge Kanne wrote. “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.”
The judges drew parallels between Naperville’s smart meter data collection and the activity discussed in the U.S. Supreme Court’s decision in Kyllo v United States, in which the high court determined law enforcement did not have the right to take even crude thermal scans of a home to determine if the occupants were growing marijuana inside, or taking part in other illegal activity which could be discerned from certain heat signatures.
“In fact, the data collected by Naperville could prove even more intrusive,” Kanne wrote. “By analyzing the energy consumption of a home over time in concert with appliance load profiles for grow lights, Naperville law enforcement could ‘conclude’ that a resident was using (grow lights) with more confidence than those using thermal imaging could ever hope for. With little effort, they could conduct this analysis for many homes over many years.”
However, while finding the data collection amounted to a “search,” the judges said they did not believe the search was “unreasonable,” as the data collection does not pose any risk to residents of being charged with crimes, because the data is not collected with “prosecutorial intent” and the city said it is not shared with police.
“To this court’s knowledge, using too much electricity is not yet a crime in Naperville,” Kanne wrote. “And Naperville’s amended ‘Smart Grid Customer Bill of Rights’ clarifies that the city’s public utility will not provide customer data to third parties, including law enforcement, without a warrant or court order.”
The judges further noted the smart meter program was introduced amid a national push by the federal government and other local governments and utilities for modernizing the electrical grid and maximizing energy use efficiency. Therefore, they said, the city holds a “substantial” interest in obtaining the data, which the judges said they must balance against the residents’ demands to turn out the lights on the city’s search feature.
The judges’ stressed this decision does not give an automatic green light to other cities and utilities to harvest data as they see fit, as the judges said collecting data “shorter intervals” or making the data readily accessible to police or “other city officials outside the utility” could trigger further litigation and court review under the Fourth Amendment.
“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,” Kanne wrote. “Nonetheless, Naperville’s warrantless collection of its residents’ energy-consumption data survives our review in this case.”
NMSA has been represented in the case by attorney Doug E. Ibendahl, of Chicago.
Naperville has been represented by its city attorneys.