Too much time is spent here on background. Let's make the next draft not a first introduction to the smart grid, but rather an essay on the subject for people who already know what it is and what's going on.

At that point, we no longer need to discuss the problems that can be controlled by regulatory solutions: what the grid does in order to operate safely and efficiently does not require the sale of user data to the market, and prohibitions of side businesses to regulated utilities is familiar regulatory fare.

Similarly, we can simplify by eliminating the idea of technical measures to anonymize data: electrons are delivered to a physical address.

But you have not yet addressed the issues that are actually of importance to the social analysis: including (1) how the software constituting the grid (and the terms of its freedom vel non as software) can change the economics of the power business, and its safety; (2) what the security issues actually are and how to deal with them; (3) the issues presented to the smart grid by renewable (which are also contingent) power sources; and (4) whether end-points in the grid should work for the power suppliers or for the consumers who own them.

The Privacy Implications of Smart Grid Technology

-- By GreggBadichek - 04 Nov 2015

Section I. Introduction

Smart grid technological innovations offer solutions to many problems plaguing America’s energy infrastructure. Among these are the nation’s reliance on an aging infrastructure and dirty, climate-altering carbon fuels; the inefficient allocation of electricity; and the traditional centralization of large power plants, which hampers the efficacy of distributed generation. However, smart grid technology would rely on real-time data collected from electricity consumers; this data would sync to each household’s existing internet environment, and would likely contain information similar to that sent out by the average American smart phone thousands of times daily. How can smart grid technology be developed and implemented in a manner that does not sacrifice the privacy of the average user?

Section II. What is the Smart Grid?

Technology

The smart grid concept can feature a variety of infrastructural technologies, such as renewable energy sources in distributed or centralized locations, net meters allowing backflow into the grid from private generation sources, and domestic sensors regulating a house’s electricity consumption throughout the day, based on factors such as need, temperature, and hourly cost. The true innovation of the smart grid, however, is digital infrastructure, and the data it shepherds. The two-way flow of information between the energy grid and the consumer actuates the information management protocols necessary to make that grid “smart.” That data allows the grid machines to automatically measure, send, receive, and shift energy toward the most efficient allocation of resources, thereby promoting consumer control over energy.

Federal Support

The implementation of the smart grid data layer remains in early stages, but public and private support remains high. Congress in 2007 declared that it is “the policy of the United States to support the modernization of the Nation’s electricity transmission and distribution system to maintain a reliable and secure electricity infrastructure” in the form of a Smart Grid. 42 U.S.C. § 17381. The smart grid is to incorporate “increased use of digital information and controls technology to improve reliability, security, and efficiency of the electric grid,” as well as “integration of “smart” appliances and consumer devices.” Id. at (1), (6). The Act likewise initiated federal support for the research and development of smart grid technology. The American Recovery and Reinvestment Act of 2009 partially implemented this provision, providing $4.5 billion to the Department of Energy—matched by participating utilities—to research, develop and fund smart grid projects nationwide.

Section III. Privacy Issues

Dangers

While the consumer is empowered with greater control over energy consumption, they must pay for that control with their digital data. The smart grid would broadly measure any given consumer’s electricity usage, which is similar to the dumb grid’s function. However, the developing smart grid would likely feature advancements in connectivity technologies made popular by smart phones. The result of this is the so-called “internet of things,” which relies on data transmission between mundane machines to presumably enhance a user’s interaction with those machines. Each device so connected would transmit user data possibly designating its purpose, location, make, model; connectivity to the smart grid would further pinpoint time and extent of device usage. The aggregation of data from several devices, combined with real time electricity usage data, creates an observable, real-time collage of all activities in a household.

Uses

It’s simple to postulate uses to which personal data representing usage of these devices and electricity generally could be put. Private actors could purchase this data from utilities for marketing purposes, perhaps without any meaningful consent from the consumer. Any company with access to electricity consumption data could easily determine the spending habits of the given consumer, and subsequently target them through customized ads directed toward the internet accounts corresponding to their IP addresses. Governments, meanwhile, could use the data to surveil upon connected consumers in real-time, logging their habits, activities, and movements to virtually no end. Given the sorely inadequate legal protections covering current consumer data, it is entirely unclear whether data in the Smart Grid would receive any sort of legal or constitutional protections from state viewers. These are merely the most obvious privacy invasions; countless others are imaginable.

Section IV. Possible Solutions

Legal Approaches

Under current Fourth Amendment doctrine, information collected via smart meter communications and retained by utility companies lacks constitutional protection against warrantless search and seizure; placement in the hands of a Third Party essentially removes the reasonable expectation of privacy underlying that protection. See Maryland v. Smith, 442 U.S. 735 (finding no expectation of privacy in phone records “voluntarily conveyed” to a telephone company or utility records “voluntarily conveyed” to a utility company). Law enforcement officials, of course, use utility records frequently in criminal investigations. The utility to investigators of data poured into the smart grid would dwarf that of the dumb grid.

Fortunately, the Supreme Court in Riley v. California, 134 S. Ct. 2473 (2014), indicated that the traditional distinction between reasonable and unreasonable expectations of privacy is obsolete in the digital context, where the bulk of private data is digital, and flows to countless third parties. Legal challenges to warrantless collection of smart grid data should therefore seize upon the Court’s language. The Fourth Amendment argument, specifically, would likely focus on this data’s total representation of activities in the home—the very raison d’être of the Fourth Amendment.

Technological Approaches

The two-way information transfer between consumer and utility will be vulnerable to interception. End-to-end encryption of data streams between the two parties would shield the data contents being transmitted, though not obscure the identities of the consumers.

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