Smart Meters and the Fourth Amendment

Overview
The use of smart meters presents the recurring conflict between law enforcement’s need to effectively investigate and combat crime and our desire for privacy while in our homes. With smart meters, police will have access to data that might be used to track residents’ daily lives and routines while in their homes, including their eating, sleeping, and showering habits, what appliances they use and when, and whether they prefer the television to the treadmill, among a host of other details.60 Though a potential boon to police, access to this data is not limitless. The Fourth Amendment, which establishes the constitutional parameters for government investigations, may restrict access to smart meter data or establish rules by which it can be obtained.61 The Fourth Amendment ensures that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....”62 This section discusses whether the collection and use of smart meter data may contravene this protection. Although there is no Fourth Amendment case on point, analogous cases may provide guidance.63

To assess whether there has been a Fourth Amendment violation, two primary questions must be asked: (1) whether there was state action; that is, was there sufficient government involvement in the alleged wrongdoing to trigger the Fourth Amendment; and (2) whether the person had an expectation of privacy that society is prepared to deem reasonable.64 If the first question is answered in the affirmative, then the analysis moves to the second question. But if no state action is found, the analysis ends there and the Fourth Amendment does not apply. This subpart will first determine whether access to smart meter data by police, or by privately and publicly owned utilities, satisfies the state action doctrine, thereby warranting further Fourth Amendment review.