Response to Professor Matthew Kugler and Meredith Hurley, Protecting Energy Privacy Across the Public/Private Divide
In their 2020 Article, Protecting Energy Privacy Across the Public/Private Divide, Professor Matthew Kugler and recent law school graduate Meredith Hurley express concern that the “smart home” revolution poses dangerous privacy risks to homeowners who do not realize that the data collected by their smart appliances may be used against them by law enforcement. If law enforcement can access individual homeowner real time electricity and water use data, it can show whether or not a person was home at a particular time, what she was doing in the home, and who else was in the home with her. Kugler and Hurley raise important privacy concerns associated with that data, and we agree such data should be protected under the Fourth Amendment and state law in the law enforcement context. However, Kugler and Hurley downplay the benefits of this data outside the law enforcement context. For instance, they state with regard to individual energy data: “Should it be available to university researchers looking for potential energy-efficiency improvements? Local department stores hoping to sell you a more efficient clothes dryer? Low level government employees who may also be your neighbors? Tech companies looking to improve the efficiency and “smartness” of your home?”
If the benefits of energy use data were limited to those circumstances, then there would be little need to carefully consider the benefits and drawbacks of making such data available, in some form, to anyone beyond the individual homeowner and the electric utility. But as we discuss in our 2016 article, Remaking Energy: The Critical Role of Energy Consumption Data, the public interest requires that the federal government and states ensure that appropriately anonymized and aggregated energy consumption data is made available to a wider range of actors than the electricity customer and the electric utility. Kugler and Hurley focus their analysis on establishing that, in the law enforcement context, the Fourth Amendment should protect that data from disclosure without the owners’ consent regardless of whether the utility collecting the data is a private company or a government utility. We agree completely with that conclusion. But by focusing their analysis primarily on that narrow question, Kugler and Hurley risk leaving the reader with a misunderstanding of the importance of the data in question outside the law enforcement context. This has significant implications in the policymaking realm, where lawmakers and advocates may use the analysis in Kugler and Hurley’s Article to be mistrustful of energy consumption data in general, and place limits on its use even outside the law enforcement context. That result would harm electricity customers, local governments, and the broader public, all of which stand to benefit from greater availability of standardized, anonymized, aggregated energy consumption data. This Response will explain these issues in more detail below.