08 March 2012

Testimony to the Maryland House Economic Matters Committee on HB 878 (3/15/2012)

Next week, I am scheduled to testify on behalf of HB 878, which would allow Maryland consumers to opt-out of smart meter installations. This is the statement I submitted. Your comments are welcome. Note that statements are generally limited to three minutes, so I had to keep it pretty short.

March 15, 2012
House Economic Matters Committee
Statement of Mr. Michael Schearer on behalf of HB 878

Mr. Chairman and members of the Committee,

My name is Michael Schearer and I am a Maryland homeowner, as well as the owner of a small business here in Maryland. For the past several years, I have been keenly interested in a number of matters involving privacy. I started a project called the Assault on Privacy which documents privacy abuses; and more recently I started a news aggregation website called Freedom Report which links to issues of freedom, liberty, and privacy both here in Maryland and across the nation. I appreciate the opportunity to offer testimony today regarding HB 878, and I want to thank Delegate Glass for sponsoring this bill. There are any number of concerns involving smart meters, but because of my background, I want to focus on the issue of privacy. I am here today on behalf of myself and my family, and thousands of other Marylanders who only seek a choice.

This spring, BGE plans to begin installation of “smart meters” in their customer area, and in Anne Arundel County in particular. I am here today because BGE expressly tells me that I am not permitted to opt-out of this device, and must accept its installation in order to have electric service in my home.

These sophisticated devices are called “smart meters” because they provide detailed and timely information about energy usage. The technology in today’s smart meters can provide in excess of 3,000 data points a month. This is a benefit for any number of reasons, but it’s also a cost for the very same reasons. “Smart meter” sounds like a nice thing, but let’s be clear—with this data in someone else’s hands, this is a surveillance device being installed at your home.

This data will provide unique identifiers and specific functionality of individual home appliances. Access to such data allows the reconstruction of one’s daily activities. Patterns of energy usage can be analyzed. You can determine sleep, work, or travel habits; these are highly personal routines.

There is a strong incentive for third parties to seek access to this data. According to the Electronic Frontier Foundation, “[w]ithout strong protections, this information can and will be repurposed by interested [third] parties. It's not hard to imagine a divorce lawyer subpoenaing this information, an insurance company interpreting the data in a way that allows it to penalize customers, or criminals intercepting the information to plan a burglary. Marketing companies will also desperately want to access this data to get new intimate new insights into your family's day-to-day routine–not to mention the government, which wants to mine the data for law enforcement and other purposes.”

In fact, law enforcement agencies already rely on energy consumption data to gather evidence of possible crimes. In Kyllo v. United States, law enforcement used energy consumption data to develop probable cause that marijuana was being grown. Agents used a thermal imaging device to detect amounts of heat within the home. The Supreme Court reversed Mr. Kyllo’s conviction because, as Justice Scalia wrote, “[i]n the home…all details are intimate details, because the entire area is held safe from prying government eyes.” Lest you suspect this information would only protect criminals, in California, police raided a home suspected of growing marijuana because of their high energy usage—only the family wasn’t doing anything illegal.  Of course, BGE isn’t law enforcement, but without strong constitutional protections, is there any doubt that this data will easily find its way to any interested third parties?

The availability of this data to outsiders brings to light another particularly important issue called the third party doctrine. The Supreme Court has held that “[t]The Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities.”  In the recent case involving warrantless GPS tracking, Justice Sotomayor recently expressed concern about this very issue: “[m]ore fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

House Bill 878 simply gives customers a choice—the opportunity to say “no” if they have concerns about smart meters. This opportunity is not unique to Maryland. Last month, the California Public Utilities Commission gave PG&E customers the right to opt-out.  And barely two weeks ago, Nevada’s Public Utilities Commission did the same thing.  The people of Manchester, Vermont voted against smart meters at their Town Meeting last week.

Lastly, I would also suggest that the bill be amended such that opting out remains available at no cost to the customer. The smart meter program is being financed partially by “stimulus” dollars, and eventually by BGE customers through rate hikes; those that choose not to participate should not be penalized by unnecessary fees.

Sir Edward Coke wrote, “"[t]The house of every one is to him as his castle and fortress..."  The enormous amount of data that will be collected by smart meters has the potential to reveal the intimate activities inside our homes. Regardless of how it is collected, this information should receive the highest amount of Fourth Amendment protection. At least until that protection is ensured, and even afterwards, for privacy reasons, customers should be permitted to opt-out of smart meter programs. I strongly urge the members of this committee to pass this bill.

Mr. Chairman, thank you for the opportunity to speak to the committee on this important issue. I remain available for your questions.
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