Plaintiff organization sued the City over its “smart meters” that were installed through a Dept. of Energy grant to modernize the power grid. The meters provide realtime information about power usage in a home. The court denies a Third Amended Complaint attempting to reformulate the two prior amended complaints over the “smart meter” being a search of the home because it provides detailed information about people being at home, when they are asleep, and what appliances are being used. This is still information available under the third party doctrine. Naperville Smart Meter Awareness v. City of Naperville, 2015 U.S. Dist. LEXIS 87640 (N.D.Ill. July 7, 2015):
I. Fourth Amendment Claim (Count I)
In the proposed Third Amended Complaint, NSMA seeks to remedy the defects that had caused the Court to dismiss the past two attempts to allege Fourth Amendment violations. “District courts may refuse to entertain a proposed amendment on futility grounds when the new pleading would not survive a motion to dismiss.” McCoy v. Iberdrola Renewables, Inc., 760 F.3d 674, 685 (7th Cir. 2014) (quoting Gandhi v. Sitara Capital Mgmt., LLC, 721 F.3d 865, 869 (7th Cir. 2013)) (internal quotations omitted).
In its prior order granting the City’s motion to dismiss NSMA’s First Amended Complaint, the Court held that NSMA members have no reasonable expectation of privacy under the Fourth Amendment in the aggregate measurements of their electrical usage-regardless of whether that aggregate usage is measured monthly, weekly, daily, hourly, or in fifteen-minute increments. See Naperville Smart Meter Awareness, No. 11-C-9299, 2013 WL 1196580, at *12 (N.D. Ill. Mar. 22,2013). The Court found that NSMA’s “assertions [did] not support a reasonable inference that the type of nonaggregate information purportedly capable of being collected by smart meters [was] actually being captured by [the City].” Id. at *13. NSMA, nevertheless, in its Second Amended Complaint, insisted that data showing aggregate residential power usage in fifteen-minute intervals reveals “intimate details about [residents’] personal lives and living habits.” Naperville Smart Meter Awareness, No. 11-C-9299, 2014 WL 4783823, at *6 (N.D. Ill. Sept. 25, 2014). The Court, however, in granting in part and denying in part the City’s motion to dismiss NSMA’s Second Amended Complaint, held, once again, that the aggregate data measured in fifteen-minute intervals is not entitled to protection under the Fourth Amendment. See id. The Court found that “[a]ny imagined explanation for [a] peak [in total power usage] necessarily relies on nothing more than guesses and assumptions, [as] 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.” Id.
NSMA now alleges the availability of new “energy disaggregation” software technology “allows for the breakdown of Interval Data collected via a smart meter into appliance-level itemized consumption,” enabling the City to garner information beyond the aggregate data to which its members have consented. 3d Am. Compl. ¶ 75. NSMA further asserts that, while the City has chosen to collect data on the 15-minute interval, the smart meter is capable of collecting Interval Data in 5, 15, 30, or 60-minute intervals. Id. ¶ 38. Therefore, at least according to NSMA, because smart meters can now accumulate “a history of energy, power, and reactive power over thousands of intervals per month …, there is far more information here than an analog meter is capable of providing via its single monthly reading of energy.” Id. ¶ 43. With these additional allegations, NSMA again alleges that the installation and use of smart meters by the City amounts to an unreasonable search of its members’ homes 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). However, “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735, 743-44 (1979); see also United States v. McIntyre, 646 F.3d 1107, 1111-12 (8th Cir. 2011) (holding that there is no reasonable expectation of privacy in residential electricity usage records). To state a Fourth Amendment violation, NSMA must allege-beyond mere capability-that the City has gathered more than just aggregate measurements of electrical usage.
After reviewing the proposed Third Amended Complaint, the Court concludes that NSMA still falls short of alleging a legally cognizable Fourth Amendment claim. Even if smart meters are capable of capturing more than the aggregate data previously presented, as NSMA alleges, NSMA still has not alleged that the City is actually collecting and using the data in a way that would amount to an unreasonable search or invasion of privacy. Put another way, the purported ability of smart meters to provide a “constant conversation,” see 3d Am. Compl. ¶ 72, between the City and its customers does not establish beyond mere “speculation” that the City has or will “plausibly” use such information in an unconstitutional manner. See Adams, 742 F.3d at 734.
In an attempt to fill this lacuna, NSMA claims that, using “disaggregation algorithms” currently available in the marketplace, the City could ascertain the level of detail that NSMA fears. 3d Am. Compl. ¶ 81. NSMA alleges there is “no restriction … to prevent the City from utilizing a disaggregation service … [which] would allow an even more intrusive search of the intimate details of NSMA members’ in-home activities.” Id. ¶ 78. But the fact that the City theoretically could employ this technology (if indeed it can) to glean more detailed information about a user’s personal life does not in and of itself constitute an allegation-or lead to a reasonable inference-that the City is doing that here. In the same way, NSMA alleges the City’s collection of Interval Data exceeds “what is necessary for customer billing purposes” without pointing to any new information that suggests that the City is disaggregating and analyzing the information to do so. Id. ¶ 49.
For the same reasons, NSMA’s reliance upon the “electrical power consumption” graphs is unavailing. The graphs presented by NSMA merely restate that smart meters are capable of capturing discrete details of behavior. See id. ¶¶ 83, 85-86. In explaining the graphs, NSMA alleges that the “[i]ncreased granularity of Interval Data provides more than ample detail for determining home occupancy, personal behaviors, and appliance usage.” Id. ¶ 88. But here too NSMA incorrectly equates possibility with plausibility. See Iqbal, 556 U.S. at 678 (“The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.”) (internal quotations omitted).
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. Because NSMA has failed to allege that smart meters are relaying detailed information beyond aggregate data about members’ electricity usage to the City and that the City is disaggregating the data to analyze the private lives of its residents, there is no cognizable claim upon which relief can be granted.
