MI: Plaintiffs failed to show that a “smart meter” violated their privacy or Fourth Amendment rights

Plaintiffs alleged but failed to show, inter alia, that a “smart meter” violated their privacy or Fourth Amendment rights. Detroit Edison Co. v. Stenman, 2015 Mich. App. LEXIS 1384 (July 14, 2015):

In the trial court, defendants failed to provide any authority in support of their claim that their privacy and health-related concerns constituted valid affirmative defenses to their violations of the relevant statutes, regulations, and tariff. Likewise, we find no basis for concluding that defendants’ concerns should deny relief to plaintiff, and allow defendant to continue receiving electricity service from plaintiff, while defendants continue to violate the applicable rules. Given the record before us, we conclude that defendants must comply with the rules promulgated by the MPSC and the tariff provisions approved by the MPSC in order to continue receiving electricity service from plaintiff. Contrary to defendants’ claims that receiving service from plaintiff is not a voluntary act because there is not a practical alternative to receiving electricity from plaintiff in southeastern Michigan, it is evident from the application procedures for receiving electricity service delineated in the MPSC rules and the tariff, and the various bases available for terminating service, that applying for and receiving electricity service from plaintiff is a voluntary act. See Mich Admin Code, R 460.106, .127, .137-.144; MPSC No. 10, § C4.3.

Furthermore, even if we assume, arguendo, that defendants’ privacy or health-related concerns constitute valid defenses to their failure to comply with the relevant rules and tariff provisions, defendants failed to establish the factual bases of those defenses. “The party asserting an affirmative defense has the burden of presenting evidence to support it.” Attorney Gen ex rel Dep’t of Environmental Quality v Bulk Petroleum Corp, 276 Mich App 654, 664; 741 NW2d 857 (2007). In support of their privacy defense, defendants proffered a report prepared by the National Institute of Standards and Technology entitled Guidelines for Smart Grid Cyber Security: Vol. 2, Privacy and the Smart Grid (NISTIR 7628). Even assuming that this report constituted admissible evidence, see MCR 2.116(G)(6), this document does not demonstrate that the smart meter installed on defendants’ property posed an actual risk to defendants’ privacy; the report generally discussed the possibility of privacy risks related to smart meters and provided recommendations for entities participating in a smart grid. Further, there is no indication that the recommendations in the report were binding on plaintiff. Moreover, as discussed infra, defendants have not shown that plaintiff’s installation and use of a smart meter violated their Fourth Amendment rights.