Smart meters, which automatically relay energy consumption data to utility companies, are increasingly displacing traditional energy meters. Data collected from smart meters has elicited widespread concern because it can reveal considerable information about what goes on inside a home. For example, smart meter data can uncover when a person is home, away, or asleep. Historically, utility records have not been afforded Fourth Amendment protection due to the third-party doctrine: a person forfeits Fourth Amendment rights when information is voluntarily conveyed to third parties. In 2018, however, the Supreme Court in Carpenter v. United States recognized an individual’s Fourth Amendment rights in data held by a third party. In doing so, Carpenter held that a warrant is required in the “rare case” where a person has Fourth Amendment rights in data held by a private third party. Additionally, in 2018, the Seventh Circuit held in Naperville Smart Meter Awareness v. City of Naperville that individuals have Fourth Amendment rights in the collection of their smart meter data in certain circumstances. Naperville did not address law enforcement access to smart meter data. This Note explains why smart meter data deserves Fourth Amendment protection and posits that smart meter data should fit squarely within the “rare case” envisioned by the Supreme Court in Carpenter. As such, this Note argues that a warrant supported by probable cause be required for law enforcement to access smart meter data.
Sarah Murphy, Watt Now?: Smart Meter Data Post-Carpenter, 61 B.C.L. Rev. 785 (2020), https://lawdigitalcommons.bc.edu/bclr/vol61/iss2/9