Kilowatts, not Kilowarrants: Government Can Obtain Smart Meter Data with Subpoenas Alone

Late last month, the ACLU of Northern California broke the news that California utilities were turning over the smart meter data of large numbers of customers to third parties—with San Diego Gas & Electric (SDG&E) alone handing over the records of 4,062 customers in a single year. Based on SDG&E's responses to follow-up questions from the California Public Utility Commission (CPUC), we have now learned that records for 4,000 of those customers were disclosed to the government without a warrant.

Smart meter data can reveal very sensitive information about our personal life and daily activities from what time we wake up and go to sleep to how often we shower and eat. And as smart meters collect more data, the potential for its misuse will increase. That's why the existing privacy rules and transparency reports required by the CPUC are so important. But these transparency reports and the revelations about the NSA's collection of sensitive consumer data both bring an emerging privacy issue into sharper focus. Current laws allow the government—both federal and state—to get a hold of records on our personal lives without showing probable cause before a judge and obtaining a warrant.

Government agents are successfully tapping into treasure troves of customer records held by companies with a mere subpoena. Both SDG&E and Pacific Gas & Electric insist that if they are presented with a valid subpoena, they must respond. The utilities are also required to notify affected customers and allow them 7 days to contest the subpoena's claim for disclosure, unless prohibited by other laws. This is important because subpoenas—serious as they may sound—do not always require judicial oversight. In certain cases, California law requires state law enforcement to seek a judge's approval (but not establish probable cause) when requesting utility records, but many federal subpoenas do not even require a judge's signature. In fact, to obtain 2,600 customer records from SDG&E the federal government used drug enforcement administrative subpoenas (whose overuse has been documented before) that require no prior judicial oversight. The ease by which the federal government may legally obtain these records in part stems from a series of outdated 1970s court decisions that maintain where information relating to a person is released to third parties (utilities, in this case), it loses Fourth Amendment protection.

The transparency reports released by the California utilities are a very important tool in providing some information about where the public's smart meter data ends up. But more needs to be done. The California Public Utilities Commission should utilize authority under its privacy rules to request additional transparency from utilities on an annual basis about the types of demands that they are receiving and how much information is being disclosed without a warrant. Californians are right to expect that these records will not be disclosed by their utility company without a judicially-approved warrant. To ensure that police cannot learn about what happens inside the home without a warrant, Californians should push for a privacy upgrade that matches our modern digital world.