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Smart utility meters raise several puzzling legal questions—and answering them can help point the way toward the future of Fourth Amendment and civil privacy law. This forum essay addresses two such issues: use restrictions on collected data, and voluntary data disclosure.
First, more than any other current technology, smart meters compel the development of use restrictions on collected data. The benefits of smart meters are potentially enormous, such that categorically prohibiting public utilities from collecting smart meter data is likely beyond the pale. Yet allowing law enforcement agents to obtain detailed or intimate data about the home without a warrant seems equally unacceptable. Smart meters are the clearest example yet of the need for robust restrictions on how the government can use data it has collected. Government entities are already collecting personal information about citizens for a variety of legitimate, non-law enforcement purposes. Limiting access to such data will often be the best practical means to ensure citizen privacy in the era of big data.
Second, smart meter privacy is threatened by legal regimes that emphasize users’ voluntary disclosure of their energy use data. While many customers have little choice but to use smart meters, numerous others do have a choice, and detailed energy surveillance likely entails customers voluntarily choosing to link their smart meters with smart home devices and appliances. Under some doctrinal approaches, such voluntarily disclosed data would be wholly unprotected by the Fourth Amendment. Courts and scholars would do well to move beyond existing paradigms of voluntary choice and inescapable surveillance, lest the most sensitive forms of smart meter data remain unprotected.
This essay responds to and is inspired by Matthew Kugler and Meredith Hurley’s excellent article in the Florida Law Review discussing the privacy ramifications of smart meters.
Tokson, Matthew, "Smart Meters as a Catalyst for Privacy Law" (2022). Utah Law Faculty Scholarship. 334.