N.D.Ill.: A smart electric meter that transmits information about electric usage is not a search and seizure

A smart electric meter that transmits information about electric usage every 15 minutes is not a search and seizure. Naperville Smart Meter Awareness v. City of Naperville, 2014 U.S. Dist. LEXIS 134861 (N.D. Ill. September 25, 2014)*:

In Count II, NSMA alleges that the City’s installation of smart meters capable of measuring the aggregate electricity usage of an individual home in fifteen-minute intervals constitutes an unreasonable search and an invasion of privacy under the Fourth Amendment. The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” and it has been held to guarantee individual privacy from some forms of government intrusion. U.S. Amend. IV; see Katz v. United States, 389 U.S. 347, 350 (1967). The Fourth Amendment, however, only protects privacy interests when a person has both an objectively and subjectively reasonable expectation of privacy. See Smith v. Maryland, 442 U.S. 735, 740 (1979). It is well established that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Id. at 743-44; see Katz, 389 U.S. at 351 (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”). This remains true even if information is provided to another on only a limited or confidential basis. See United States v. Miller, 425 U.S. 435, 443 (1976).

As this Court has held previously, NSMA members have no reasonable expectation of privacy in the aggregate measurements of their electrical usage. See Naperville Smart Meter Awareness, No. 11-C-9299, 2013 WL 1196580, at *12 (N.D. Ill. Mar. 22, 2013); see also United States v. McIntyre, 646 F.3d 1107, 1111-12 (8th Cir. 2011) (holding that there is no reasonable expectation of privacy protected by the Fourth Amendment in residential electricity usage records); United States v. Hamilton, 434 F. Supp. 2d 974, 979 (D. Or. 2006) (also holding that there is no reasonable expectation of privacy in residential electricity records); United States v. Porco, 842 F. Supp. 1393, 1398 (D. Wyo. 1994) (same). Data from the City’s smart meters shows only total usage and no further details than that. See 2d Am. Compl. ¶¶ 35, 39. Because there is no reasonable expectation of privacy in that data as a matter of law, the data is not entitled to protection under the Fourth Amendment.

NSMA nevertheless insists that data showing aggregate residential power usage in fifteen-minute intervals reveals “intimate details about [residents’] personal lives and living habits” and that an inspector of this data could make “assumptions regarding particular appliances and lighting presently in use.” 2d Am. Compl. ¶¶ 38, 235. It is not possible, however, to infer from NSMA’s allegations that smart-meter data conveys any information in which residents have a reasonable expectation of privacy. For example, suppose a graph displaying a Naperville resident’s total power usage for one day shows a peak in usage around 7:00pm. See id. ¶ 39 (providing such a graph as an illustrative example). Any imagined explanation for the peak necessarily relies on nothing more than guesses and assumptions, because the electrical usage data itself does not provide any information confirming how many or what types of household appliances or devices are in use at any time. At most, someone inspecting the data might guess that at least one resident had been home at 7:00 pm. But that same guess could also be reasonably made by any member of the public walking by the residence who notices a car in the driveway or lights in the windows-that is not information that can be reasonably expected to remain private.

Additionally, NSMA cannot state a claim under the Fourth Amendment based on an unreasonable search of protected information when the allegations show that no such information has been recorded or obtained. Because NSMA has not alleged that the City is collecting anyinformation that is more detailed than aggregate usage measurements, or that is otherwise entitled to protection under the Fourth Amendment, NSMA has failed to state a claim for unreasonable search and seizure. The Court accordingly grants Defendant’s motion to dismiss Count II of NSMA’s Second Amended Complaint.

That it’s transmitted every 15 minutes and a meter reader doesn’t come once a month anymore is a search where the latter isn’t? I normally don’t post civil cases because I don’t have the time to read them anymore, but the style of this case caught my attention.

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