The Harvard Journal of Law & Technology recently released its Fall 2011 issue, now available online. Sonia K. McNeil, author of “Privacy and the Modern Grid” has written an abstract of her article for the Digest, presented below.
- The Digest Staff
JOLT Print Preview: Privacy and the Modern Grid
Sonia K. McNeil
The American electrical grid is in bad shape. Because of chronic underinvestment in research and development, a digital nation now relies on an infrastructure created before the invention of microprocessors that is beginning to show its age. Power quality problems and system disturbances cost the United States nearly $150 billion each year, regional blackouts aggravate and endanger millions of residents, and structural insecurities tempt hackers and terrorists around the globe.
To address these problems, the modern grid is being transformed from an outmoded, centralized network dominated by energy producers to a flexible, decentralized system that is more secure, more reliable, and better able to respond to and interact with consumers. The updated “smart grid” will permit “a two-way flow of electricity and information” in near-real time, creating an adaptive, interactive energy matrix. For consumers, the most visible part of the smart grid will be “smart meters,” advanced electrical meters that collect highly granular data on individual electricity consumption and allow users to monitor and remotely control their electrical use in response to fluctuating energy prices. At the level of an individual home, the goal is to use data to encourage consumers to conserve energy by showing them its cost as they consume it, rather than days or weeks later in an energy bill. System-wide, this information will be harnessed to spur economic growth, conserve the environment, increase electrical service reliability, strengthen national security, and develop derivative technologies.
The nationwide deployment of smart meters has begun. This transition, however, brings new threats to privacy. The smart grid’s essential innovation is information. From a privacy standpoint, this signature benefit is also the smart grid’s Achilles’ heel. Because smart meter data is highly granular, it is highly revealing. Data from a smart meter can tell an observer much more about a home than the information from a more traditional meter using older technology.
Fully realizing the benefits of the smart grid, however, requires bringing advanced meters into as many homes and businesses as possible. As a result, it is unlikely that customers will be permitted to opt out of smart meter installation. As of August 2010, approximately two million smart meters had been installed nationwide. Forty million homes will be equipped with smart meters by 2015. These meters are a rich source of information that is not clearly covered by “existing, sector-specific Federal privacy statutes.”
To protect individual privacy and ensure consumer trust during the deployment of smart meter technology, it is vital that an individual’s smart meter data be protected from suspicionless access by law enforcement. Despite growing concern about access by law enforcement to other types of sensitive information, however, the prospect of unconstrained law enforcement access to smart meter data has received relatively little attention. This may be because the technology is not well understood. At last count, only four percent of Americans had heard of the smart grid. Nearly half of respondents to another recent survey reported that their community does not understand the technology “at all.” Although fully achieving the benefits of the smart grid requires mass deployment of smart meters, the social value that the smart grid creates should not come at the cost of individual privacy.
This Note discusses two potential sources of privacy protection for an individual’s smart meter data: the courts, through the Fourth Amendment, and Congress, through new federal privacy legislation. First, this Note introduces the smart grid and smart meter technology, and explains why privacy protections for an individual’s smart meter data are critical. Second, it discusses the Fourth Amendment and the Fourth Amendment’s “third-party doctrine,” which generally eliminates constitutional constraints on law enforcement access to information held by third parties. Next, it describes the third-party doctrine and explains why it should not be interpreted to remove Fourth Amendment protections for an individual’s smart meter data. The Supreme Court, however, has been reluctant to reexamine the third-party doctrine. Securing consumer trust, moreover, may require greater assurance than prognosticating a future Court’s ruling can provide. As a result, this Note proposes legislative alternatives. It concludes by identifying and discussing two existing federal legislative frameworks that could be adapted to provide individual privacy protections for smart meter data.