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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)
