Written by: Ann Cheetham
Most American consumers use electric in their homes. In recent years, this electric consumption has been monitored by smart meters[1], a technology that introduces privacy issues: both Fourth Amendment privacy and consumer privacy. A smart meter enables two-way transmission of energy consumption data between consumers and utilities in very frequent intervals, sometimes every minute.[2] Unlike smart fridges or security systems, which customers choose to install, customers are frequently unaware that they have a smart electric meter. Customers are also often unaware of the information that can be deduced about their families, activities, and lives from smart meter electric data.[3] In Pennsylvania, for example, the Pennsylvania Supreme Court has interpreted enactment of Act 129, an amendment to the Electricity Generation Customer Choice and Competition Act[4], to mean smart meters are mandatory in order to achieve the goals of energy efficiency and conservation.[5]
Unlike traditional electric meters that aggregate a month’s worth of electric usage before transmitting the data[6], the “granular” levels of data transmitted by smart meters can reveal not only when consumers are home, asleep or awake, but also the use of specific appliances.[7] Over time, clear consumer behavioral patterns can be determined.[8] Consumers’ electric data is valuable to many entities such as insurance companies, solar providers, marketers, and a myriad of companies.[9] Law enforcement has a strong interest in access to consumers’ electric usage data, as well.[10]
The privacy of smart meter data differs depending on whether a consumer’s utility is public and government/quasi government or private. Public utilities which are run by government or quasi-government entities are subject to the Fourth Amendment protections against unreasonable searches and seizures.[11] This means that searches and seizures by law enforcement require a warrant.[12] For non-law enforcement purposes, the data may be collected under a “reasonableness standard.”[13] A search is reasonable for Fourth Amendment purposes if it protects a legitimate government interest.[14] Private utilities may be subject to the Third Party Doctrine in which information that is voluntarily given to a third party becomes public information.[15] Once information is public it may be collected by law enforcement without a warrant.[16]
Smart meter technology has been used by law enforcement to seek an arrest warrant for a murder suspect in an Arkansas.[17] In this case, law enforcement used data from a water smart meter to demonstrate that the murder the suspect used 140 gallons of water between one a.m. and three a.m. the night of the murder.[18] The time and amount of water led enforcement to infer that the suspect could have cleaned the blood off the patio.[19] In the case Naperville Smart Meter Awareness v. City of Naperville, a group of citizens filed suit against their electric supplier, City of Naperville.[20] The Citizens group argued that the installation and collection of data from smart meters was a search and violated the Fourth Amendment of the U.S. Constitution.[21] The U.S. Court of Appeals for the Seventh Circuit held that while the collection of smart meter data constituted a search, the search was reasonable.[22]
Many private utility companies have specific smart meter policies.[23] There are questions about whether privacy policies and notices are enforceable contracts or not.[24] In addition to the specific smart meter notices, utility companies may provide additional privacy policies such as general customer privacy policies[25] and web privacy policies.[26]
Smart meters are ubiquitous, in some states mandatory, and reveal to the outside world when the inhabitants are doing laundry, whether they are at home or away, asleep or awake. Consumers should be aware of how revelatory their energy usage data can be about their lives and understand how that data can be used both by private companies and law enforcement.
[1] Alexandr B. Klaus and Elizabeth J. Wilson, Article: Remaking Energy: The Critical Rule of Energy Consumer Data, 104 CALIF. L. REV., 1095, 1097 (2016). In 2014 47% of homes contained smart meters.
[2] Natasha H. Duarte, Article: The Home Out of Context: The Post-Riley Fourth Amendment and Law Enforcement Collection of Smart Meter Data, 91 N.C.L. REV. 1140, n. 1 (2015).
[3] Id.
[4] Povacz v. Pennsylvania Public Utility Commission, 280 A.3d 975, 982 (Pa. 2022) (Dougherty, J., concurring and dissenting).
[5] Id., at 982.
[6] Duarte, supra note 2, at 1140.
[7] Matthew B. Kugler and Meredith Hurley, Article: Protecting Energy Privacy Across the Pubic/Private Divide, 72 FLA. L. REV. 451, 452 (2020); Natasha H. Duarte, Article: The Home Out of Context: The Post-Riley Fourth Amendment and Law Enforcement Collection of Smart Meter Data, 91 N.C.L. REV. 1140 (2026).
[8] Kugler, supra note 7, at 452.
[9] Id. at 454-455.
[10] Duarte, supra note 2, at 1140.
[11] Kugler, supra note 7, at 456.
[12] Id.
[13] Id.
[14] Naperville Smart Meter Awareness v. City of Naperville, 900 F.3d 521, 528 (7th Cir. 2018).
[15] Duarte, supra, note 2 at 1141, n.10 (citing U.S. v. McIntyre, 646 F.3d 1107, 111-1112 (8th Cir. 2011) (“applying Smith v. Maryland, 442 U.S. 735 (1979) . . . “).
[16] Id.
[17] Kugler, supra, note 7 at 451, n. 3 (Arkansas v. Bates, No. CR20160370 Ark. Cir. Feb. 22, 2016), 2016 WL 7587396) (Later the charges were dropped.)
[18] Id.
[19] Id.
[20] Naperville Smart Meter Awareness v. City of Naperville, 900 F.3d 521, 523-4 (7th Cir. 2018).
[21] Id. at 524.
[22] Id. at 529.
[23] A few smart meter policies: Duquesne Light Co., Data Privacy and Your New Meter, (Mar. 20, 2023, 11:01 AM) https://www.duquesnelight.com/docs/default-source/default-document-library/data-privacy-and-your-new-meter.pdf?sfvrsn=9d32a542_8; First Energy Corp, Pennsylvania Smart Meters, (Mar. 20, 2023, 11:03 AM) https://firstenergycorp.com/help/smart-meters/pa-smartmeter.html; PPL, Meter Data Privacy Notice, (Mar. 20, 2023, 11:04 AM) https://www.pplelectric.com/site/More/About-Us/Reliability/New-electric-meters/Meter-Data-Privacy-Notice.
[24] DANIEL J. SOLOVE & PAUL M. SCHWARTZ, CONSUMER PRIVACY AND DATA PROTECTION 192 (3rd ed. Wolters Kluwer 2021).
[25] Example: Duquesne Light Co., Privacy Policy, (Mar. 22, 2023, 10:58 AM) https://www.duquesnelight.com/customer-support/policies-forms/privacy-policy.
[26] Example: PPL Electric Utilities, Notice for Benefit of Customers, (March 20, 2023, 11:20 AM) https://www.pplelectric.com/privacy-notice (A customer, for this policy, is anyone who uses the site.)