25 August 2018 WRITTEN BY: JAMIE WILLIAMS
The Seventh Circuit just handed down a landmark opinion, ruling 3-0 that the Fourth Amendment protects energy-consumption data collected by smart meters.
Link To Article
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” – Fourth Amendment, U.S. Constitution
Editor’s note: The title of this story is a bit misleading. However, even with the affirmation of the court’s denial of leave to amend, the acknowledgment of smart meters being a search is significant.
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. Nonetheless, Naperville’s warrantless collection of its residents’ energy-consumption data survives our review in this case.
Even when set to collect readings at fifteen-minute intervals, smart meters provide Naperville rich data. Accepting Smart Meter Awareness’s well-pled allegations as true, this collection constitutes a search. But because of the significant government interests in the program, and the diminished privacy interests at stake, the search is reasonable. We therefore AFFIRM the district court’s denial of leave to amend.
Dear Jamie, Question regarding the landmark ruling article conclusion; According to their ruling, the case doesn’t look won… Am I missing something? Thanks, Jolie
Thanks for your email. As we explain in the blog post, the finding that the Fourth Amendment even protects smart meter data in the first place — the first step of the Fourth Amendment test — is a landmark finding. It was not guarantee. Given the third party doctrine and old caselaw saying energy usage data is not protected, quite the opposite in fact.
This is a step forward for privacy of smart meter data across the board and thus we — as privacy advocates — view this case as a victory. If the court had ruled that the Fourth Amendment did not protect the data (like the lower court ruled) that would have been a significant loss. That would have meant that people have no reasonable expectation of privacy in smart meter data — under any circumstances, no matter who in the government wants to get access to it — as a matter of law. Importantly, the city of Naperville argued that the data had zero Fourth Amendment protection. They lost that argument.
The Seventh Circuit even extended a brand new Supreme Court decision regarding cell site location information (finding that the third party doctrine did not apply), and it was the very first court to extend this ruling in any case that I know of.
The second step of the Fourth Amendment analysis is whether the collection is reasonable. While the court ultimately found that use of smart meters by Naperville was reasonable under the circumstances of this case, its finding that it was covered by the Fourth Amendment is still a significant victory for privacy, even though NSMA did not get everything it wanted in the case.
Also, please note that we are not the lawyers for NSMA. We were amicus in the case and filed a brief arguing that the data must be protected by the Fourth Amendment. That may be why it seems confusing.
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