Shmoocon Firesides 2014 (Having Your Cake and Eating It Too: FOIA, Surveillance, and Privacy)

A correction to my talk: the pen register was installed by the police to record the numbers dialed from the telephone at Smith's home; not to record the numbers received by the telephone at the victim's home.

The world is a safer place after my freedom frisk

The world is a safer place after my freedom frisk. Also, see the passport and boarding pass in my hand? It happened again.

ShmooCon Firetalks submission

Having Your Cake and Eating It Too: FOIA, Surveillance, and Privacy

In Washington, DC, the federal government is arguing against a prolific Freedom of Information Act (FOIA) requester that his multitudinous requests, taken together, constitute a "mosaic" of information whose release could "significantly and irreparably damage national security" and would have "significant deleterious effects" on the bureau's "ongoing efforts to investigate and combat domestic terrorism." In the District of Columbia, the federal government is defending the legality of the intelligence community's surveillance programs under a 1979 Supreme Court case, Smith v. Maryland, that found constitutional use of a “pen register” device to gather information on numbers called by a criminal suspect. So, yes: the government is simultaneously arguing to that too much otherwise-legitimate FOIA data creates a mosaic that threatens national security--but large scale metadata collection, far beyond anything contemplated by a simple pen register device in 1979--is perfectly legitimate. Is this a problematic dichotomy? And if so, what can we do about it?

American Bar Association Citizen Amicus Project results

Back in December, before I had even taken a day of Criminal Procedure, I submitted an essay to the American Bar Association's Citizen Amicus Project:

The 2012-2013 Project focuses on the Fourth Amendment issues raised by law enforcement's warrantless use of trained narcotics dogs to detect narcotics from the outside of a home.  

This term the Supreme Court will hear Florida v. Jardines, a case that questions whether law enforcement's use of narcotic detection dogs in front of a home, without a warrant, violates the homeowner's Fourth Amendment right to be free from unreasonable searches.  The Supreme Court will review one question in the case: 

Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?

I posted my submission here.

The Supreme Court's opinion is here.

I just found out I received the runner-up award! Pretty good for a part-time 1L don't you think? :-)

Law in Plain English: Florida v. Jardines

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

My initial discussion of both dog sniff cases is here; with an extended discussion of Jardines here.

Florida v. Jardines

Police conducted a warrantless "sniff test" with a narcotics detection dog ("Franky") at the front door to Jardines's home. Franky alerted, and police found several marijuana plants inside. Dog sniffs have traditionally not been considered searches for Fourth Amendment purposes (for example, see here, here, and here), but those cases dealt with cars or luggage, when the expectation of privacy was less. The question before the Court was whether a dog sniff at the front door of a house in which marijuana was suspected of being grown, by a trained narcotics detection dog constituted a search under the Fourth Amendment. In a 5-4 decision, the Supreme Court ruled that the dog sniff invaded the home's curtilage. A guest might be implictitly allowed to come to a porch to knock on someone's door, but this invitation didn't extend to a trained narcotics dog. As a result, the dog sniff was considered a "search" for Fourth Amendment purposes and the seized evidence would likely be excluded. The practical impact of this decision is that police will almost certainly require warrants to use drug detection dogs when the searches are associated with homes.

Police shut down an underage drinking party, but what about the Fourth Amendment?

Police in Anne Arundel County shut down an underage drinking party and cited 22 juveniles between the ages of 14 and 17. Aside from the important issue of underage drinking, let's take a look at this incident from a Fourth Amendment perspective.

Consider the following police report (emphasis is mine):

On March 23, 2013, at approximately 9:00 p.m., officers were dispatched to a residence in the 100 block of Southway Drive in Severna Park for a report of an underage drinking party.  This was the third such call in four months at this address. 

As the first officer arrived, the officer observed juveniles walking out of the residence with cans of beer in their hands. The officer subsequently entered the open door and found the home full of juveniles consuming alcohol. Several subjects fled from the home before additional officers arrived, but officers were able to detain 22 individuals in the residence. One of the juveniles fell out of a second story window as he attempted to avoid detection by the officers, yet he was uninjured and brought in with the rest of the subjects. All of the individuals were under the legal drinking age and in the possession of alcohol. The adult homeowner was not at home. 

 In total, 22 juveniles, males and females between the ages of 14 and 17, were charged via citation with underage liquor law violations. Due to their various states of intoxication, the juveniles were all detained at the residence until officers were able to contact their parents who responded to take custody of their children.

Probable cause here is simple: The police had received three calls in four months at this address; the the officer observed juveniles walking out of the residence with cans of beer in their hands. Police could have obtained a search warrant; However, there is no evidence that they did.

The police presumably entered the private residence without a warrant. Warrantless searches are presumed to be unconstitutional. As a result, to be a valid search, the police must point to a warrant exception. Probably the most likely exception here is plain view, because the officer, while standing outside the home, observed juveniles walking out of the residence with cans of beer in their hands. On the other hand, the officer found the home full of juveniles consuming alcohol after he entered the open door. Plain view permits the seizure of evidence if police are lawfully in the location from which the evidence can be viewed.

Other warrant exceptions (search incident to lawful arrest, consent, stop and frisk, automobile exception, emergencies or hot pursuit) probably don't apply. One might try to make a case that underage drinking was an emergency, but absent any view of someone passed out or in otherwise immediate need of medical attention (as viewed from outside the home), this probably doesn't add up.

As for standing, unless one of the juveniles actually lived at the home, none of them could likely challenge the search because they don't have a reasonable expectation of privacy in that home as temporary social guest. Only the homeowner could do that. It would be interesting to see a challenge here, but I think it's unlikely that would happen. It is an interesting fact pattern, nonetheless.

If you want to restore and protect the Fourth Amendment, you have to be able to look past criminality. You have to be able to say that even though police thwarted underage drinking, that end result is worth challenging if it violates a basic principle of the Bill of Rights. Challenging questionable police conduct doesn't mean I condone underage drinking. But the Fourth Amendment (and the Bill of Rights in general) is more important than a house party.

What do you think?

Surveillance State: The Home Depot

The Home Depot nearest me (and presumably others like it) recently installed motion-activated security cameras (and monitors) all over the store and at the registers that beep annoyingly while recording. According to an employee, they're for loss prevention purposes (presumably in addition to the normal cameras that most stores already have installed).

SCOTUS in Plain English: United States v. Jones

This is one in a series of posts designed to describe Supreme Court decisions in plain English. For more detail and background on the legal issues, see the link to the case at SCOTUblog below. For similar posts, click here.

United States v. Jones

Police attached a GPS tracking device to Jones' Jeep and tracked his movements for almost a month. Later, they used the data to associate him with various locations, including places where drugs were located. The Supreme Court ruled that placing the device on the Jeep constituted a physical trespass, and thus constituted a search under the Fourth Amendment--the police physically occupied private property for the purpose of obtaining information. To be clear, the GPS tracking device was placed on the Jeep while it was in a public parking lot--but placing the device on the Jeep was still considered a trespass on Jones' property. As a result, the evidence gained from the GPS could not be used against Jones and his conviction was overturned. The practical impact of this decision is that police will likely need to obtain a warrant to track (at least some) vehicles by GPS, although it still remains unclear if this is necessary for all GPS tracking, or only tracking over a certain (as yet undetermined) period of time. It is also unclear how this ruling might impact future decisions about tracking via cell phone data--although, a lower court has ruled that cell phone tracking data could be used against Jones; it appears likely that he will be convicted again despite police not having the GPS data.

Foursquare's new privacy policy

Here's the email that Foursquare sent to its users regarding its new privacy policy. Remember, they can only show your full name if you actually give them your full name. They're making it pretty clear that you can change this if you don't want your actual full name displayed.

Hello Foursquare community!

2012 has been a pretty huge year. We’ve released over fifty new features, welcomed nearly 15,000,000 new people to Foursquare, and had our 3,000,000,000th check-in. It’s a bit clichéd to say this, but your support really is what keeps us going day after day.

As our product evolves, one of the things we do is update our policies to match it. And a big aspect of that is privacy (something we think about a lot). This email lays out a couple changes that we’ll be making to our privacy policy in the coming month, and explains how they affect you and what you can do about it. 

We know that privacy policies can be dense, so we put together a high-level document that we think of as our “Privacy 101.” It describes, in an easy-to-read way, how we build privacy into our product. While it doesn't replace the legal need for the complete description of our privacy practices (which you can read here), we hope it helps you better understand how we think about privacy. We’ve also added new explanations of how privacy works throughout the app in our FAQs, including our default privacy settings and how they can be adjusted. 

In addition to creating and refining those documents, we want to point out two specific changes to our policy, both of which will go into effect on January 28, 2013. 

1. We will now display your full name. Currently, Foursquare sometimes shows your full name and sometimes shows your first name and last initial (“John Smith” vs. “John S.”). For instance, if you search for a friend in Foursquare, we show their full name in the results, but when you click through to their profile page you don’t see their last name. In the original versions of Foursquare, these distinctions made sense. But we get emails every day saying that it's now confusing. So, with this change, full names are going to be public. As always, you can alter your ‘full name’ on Foursquare at https://foursquare.com/settings. 

2. A business on Foursquare will be able to see more of their recent customers. Currently, a business using Foursquare (like your corner coffee shop) can see the customers who have checked in in the last three hours (in addition to the most recent and their most loyal visitors). This is great for helping store owners identify their customers and give them more personal service or offers. But a lot of businesses only have time to log in at the end of the day to look at it. So, with this change, we're going to be showing them more of those recent check-ins, instead of just three hours worth. As always, if you'd prefer not to permit businesses to see when you check into their locations going forward, you can uncheck the box under ‘Location Information’ at https://foursquare.com/settings/privacy. 

The Foursquare of today is so different than the first version that launched in 2009, and we appreciate that you let us continue to evolve and build our vision. This occasionally means altering our privacy policy. When we do, we make it a priority to come up with clear ways to help you understand your privacy choices, and to communicate them clearly. If you have any questions or want more details, head over to our updated privacy policy or support.foursquare.com. 

Have a lovely holiday, and thanks for being part of the nearly 30,000,000-strong Foursquare community. We have a lot planned for 2013! 

- Team Foursquare

Is a dog sniff considered a Fourth Amendment search?

Here is the submission I made to the ABA's Citizen Amicus Project.

The question presented in Florida v. Jardines is whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause. Because Franky’s sniff was a sense-enhancing technology not in public use, and because the police trespassed to obtain information, the dog sniff should be held to be a search.

The Fourth Amendment provides in part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”[1]

Modern Fourth Amendment jurisprudence is derived from Justice Harlan’s concurrence in Katz v. United States.[2] There, he articulated a two part test that would later be adopted by the Court in Smith v. Maryland.[3] The Fourth Amendment is implicated when a person has an actual (subjective) expectation of privacy, and when that expectation is (objectively) reasonable to society.[4]

More recently, the Court has supplemented the Harlan test with a property –focused approach that recognizes the connection between private property and a physical intrusion that would constitute common law trespass. Two recent cases that provide illumination on this issue are Kyllo v. United States[5] and United States v. Jones.[6]

In Kyllo, the Court addressed the role of technologically sophisticated surveillance as it relates to the Fourth Amendment. The police used a thermal imaging device to identify heat emanating from the home of a suspected grow house. Despite the fact that this device was used from a public street, the Court concluded that “[w]here …the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”[7]

The common law trespassory test was revived in Jones. There, the police placed a GPS tracking device on Jones’ vehicle to obtain his vehicle location over the course of 28 days. Writing for the Court, Justice Scalia found that in placing the GPS device, “[t]he Government physically occupied private property for the purpose of obtaining information.”[8] This physical intrusion constituted a “search” and thus implicated the Fourth Amendment.[9]

The dog sniff in Jardines has been compared with Illinois v. Caballes[10], where a dog sniff during a traffic stop was found to not violate the Fourth Amendment. Caballes, in turn, relied on United States v. Place[11] and City of Indianapolis v. Edmond.[12] In Place, the Court found that a dog sniff of luggage did not constitute a search because it did not require opening the luggage or exposing items that would otherwise remain hidden from view.[13] Similarly, in Edmond the Court held that a dog walk around a car was not intrusive enough to be considered a search.[14]

The obvious and common nexus found in Caballes, Place, and Edmonds is that the alleged searches were done away from the home. Although not at all consistent in their application[15], the Court has undoubtedly indicated that the expectation of privacy in vehicles is lessened as compared to the home. Similarly, the privacy of the luggage of a traveler at an airport lessened due to the Government’s interest in protecting air travelers.

The facts in Jardines bring us close to the home, but not quite through the “firm line at the entrance."[16] Rather, here the police conducted the dog sniff from Joelis Jardines’ front porch. Based on the two approaches cited above, two questions arise. First, was the use of the dog sniff consistent with the sense-enhancing technology employed by the police in Kyllo; and second, did the dog sniff constitute a physical trespass upon Jardines’ front porch? Regardless of which approach the Court decides to take, the answer to both questions is most assuredly yes.

Using the Katz approach articulated by Harlan and refined in Kyllo, a trained drug sniff dog is not a device in general public use. But to suggest that these dogs only alert to contraband, and thus could never implicate Fourth Amendment protections (because, presumably, a person has no expectation of privacy in contraband) is a circular argument that did not convince (at least) three justices during oral arguments. Moreover, the sober evidence discussed by a number of Fourth Amendment scholars[17] indicates agreement with Justice Souter’s proclamation in Caballes: “ The infallible dog… is a creature of legal fiction.”[18]

Because the alleged search never crossed the threshold of Joelis Jardines’ home, the common law trespassory test requires us to address the issue of curtilage. The Court articulated a four factor test to define curtilage in United States v. Dunn.[19] However, the front porch of a home generally regarded as exempt from this protection because homeowners impliedly consent for visitors to come to the door to knock. Additionally, the police “knock and talk” tactic is a common procedure that does not appear to have received much recent scrutiny (notwithstanding the Court’s prior holding in Johnson v. United States[20]). But these are limited purposes.

Even presuming the legitimacy of the owner’s implied consent and the validity of the “knock and talk,” there comes a time when the limited purpose ends and reasonableness must prevail. A homeowner’s implied consent to visitors on the front porch only lasts until the homeowner has the opportunity to invite the visitor in, or on the other hand, turn the visitor away. Similarly, the police officer’s presence on the front porch can only said to be legitimate until an otherwise benign purpose disappeared. A police officer stationed on the front porch for several minutes (without knocking, to be clear), with Franky sniffing at the door and a supporting cast of law enforcement officials in the immediate vicinity, cannot said to have been benign.

---

[1] U.S. Const. amend. IV.

[2] 389 U.S. 347, 360 (Harlan, J., concurring).

[3] 442 U.S. 735.

[4] Id., at 740.

[5] 533 U.S. 27.

[6] 132 S. Ct. 945.

[7] Kyllo, 533 U.S. at 32.

[8] Jones, 132 S. Ct. at 949.

[9] Id.

[10] 543 U.S. 405.

[11] 462 U.S. 696.

[12] 531 U.S. 32.

[13] Place, 462 U.S. at 707.

[14] Edmond, 531 U.S. at 40.

[15] See generally New York v. Belton, 453 U.S. 454 (1981); Thornton v. United States, 541 U.S. 615 (2004); and  Arizona v. Gant, 556 U.S. 332 (2009).

[16] Payton v. New York, 455 U.S. 573, 590.

[17] See Brief of Amici Curiae Fourth Amendment Scholars in Support of Respondent, Florida v. Jardines, No. 11-564.

[18] Caballes, 543 U.S. at 411 (Souter, J., dissenting).

[19] 480 U.S. 294, 301.

[20] 333 U.S. 10.

The #SCOTUS dog sniff cases

Yesterday, the Supreme Court heard oral arguments in two cases involving the use of drug-detection dogs.  In the first case (Florida v. Jardines), the question was whether a dog sniff at the front door of a house in which marijuana was suspected of being grown, by a trained narcotics detection dog ("Franky") constitutes a search under the Fourth Amendment. In the second case (Florida v. Harris), the question was whether an alert by a trained drug-detection dog (in this case, "Aldo"), provides sufficient probable cause to search a vehicle.

Dog sniffs have traditionally not been considered "searches," (see United States v. Place, 462 U.S. 696 (1983); City of Indianapolis v. Edmond, 531 U.S. 32 (2000); and Illinois v. Caballes, 543 U.S. 405 (2005)) but those cases dealt with cars or luggage, when the expectation of privacy was less. In Jardines, the dog sniff was at the front door of a home, within the home's curtilage, and where the expectation of privacy was greater. I suspect that the court will rely on the holding of Kyllo v. United States, 533 U.S. 27 (2001), where Justice Scalia (writing for the majority) said that:

We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area," Silverman, 365 U. S., at 512, constitutes a search--at least where (as here) the technology in question is not in general public use.

I think we're also likely to see some discussion of trespass similar to that in United States v. Jones, 565 US ___ (2012). Either way, I think the Court will come down on the side of Joelis Jardines and affirm the Florida Supreme Court's ruling.

In Harris, the case dealt with a dog sniff of a vehicle, but centered more on the qualifications or certifications of the dog itself, and it's record of alerting (accurately, or alternatively, false positives). I feel a little less certain about this one, but I suspect the Court is unlikely to second-guess the training and certification regimen that police departments use to qualify their narcotics detection dogs. As a result, I believe they will reverse the ruling of the Florida Supreme Court.

Is the noPhoto illegal?

See here how it works:

1. The traffic camera fires its flash to illuminate your car for a picture
2. The noPhoto detects the flash, analyzes it, and sends the proper firing sequence to its own xenon flashes.
3. The noPhoto precisely times and fires the flash at the exact moment needed to overexpose the traffic camera.
4. Since the traffic camera is not expecting the additional light from the noPhoto, all of its automated settings are incorrect and the image is completely overexposed.  Your license plate cannot be seen and you will not get a ticket in the mail.

Is it illegal? They say no:

Is the noPhoto legal? 

Since there is nothing physically covering or obscuring the license plate, the noPhoto does not violate any license plate cover laws.  Quite literally, we are using the same light and the same bulbs that red light and speed cameras do.  The noPhoto does not cover any state names, and there are no laws in existence regulating how much light is cast onto the license plate.

Unless the creators actually examined the laws of all 50 states (and DC), I suspect this is a dubious explanation; especially if they only looked specifically for "license plate cover laws." Here is Maryland's law:

Md. TRANSPORTATION Code Ann. § 21-1112.1: "(a) In general. -- A person may not obscure or modify any vehicle registration plate with intent to avoid identification."

As a reminder, IANAL(Y).

It makes sense to read this as applying to license plate covers (like these), but there is no language in this statute that indicates covers. So it makes sense that it should also apply to any method that obscures the license plate, even if it's not part of a cover. Lastly, the specific intent here, as declared above, is "to avoid identification." The legislature intended the law to prohibit people from trying to hide their plates, by any means (whether a cover or a flash device that didn't exist when the law was written).

I laud the creativity, and hope that people will continue to push the limits. But my reading and understanding of this statute, as it applies in Maryland, is that the noPhoto would be considered in violation.

DerbyCon talk info

I'll be speaking at DerbyCon in Louisville, KY (September 27-30, 2012). Here is my talk info:

Title: Flex Your Rights: The Constitution & Political Activism in the Hacker Community

Abstract: Let's be clear upfront: I don't care if you're a Republican or Democrat (or another party), I don't care if you're pro-life or pro-choice. This presentation isn't about politics in the traditional sense. What we should be willing to acknowledge, however, is that public policy issues and the political process increasingly overlap with issues and interests that are important to the hacker community. Issues like free speech, privacy, and copyrights manifest themselves in legislation like SOPA, PIPA, ACTA, the Cybersecurity Act, DMCA (and many others). Surely these issues are worth our time and attention. By exploring recent legislation, court cases, and newsworthy events, it's my aim to convince you that we, the hacker community, need to flex our rights right now, more than ever. Won't you join me?

The schedule is here.

Hope to see you there!

A phone call, a death threat, and WTF just happened?!

A few nights ago, my wife answered my cell phone and the caller (whose ID was either unknown or blocked) asked for me by name. I wasn't immediately available so she asked if she could take a message. The caller did in fact, leave a message (paraphrased):

"You tell that fuckin' asshole that I can have him and his whole family murdered."

Yikes.

I reported the phone call to the police.

But who was it?

I have no idea, but I can speculate (and I say speculate because I have no evidence to back this up). As many of you know, I post a lot of politically-related things on Twitter and Facebook. And as many of you know, political discussions online are often very toxic. Recently, they've spilled over into real life: several conservative bloggers have been SWATted. Now I don't blog nearly as often as some of these folks, nor do I don't have nearly the audience (and I consider myself more of a libertarian than a conservative, but that's really not important). But I think (and again, I am only speculating) that I probably said something on Twitter that tweaked someone and they felt the need to respond. With a life threatening phone call. A little overboard, don't you think?

I served nearly 9 years in the Navy, fighting for this country, so that we can enjoy the freedom of speech. Nice way to repay me, thank you very much. Either way, and regardless of the reason why someone did it, I won't allow anonymous threats from a coward to intimidate me or my family.

Ley de Geolocalización and warrantless cellphone tracking in Mexico

This is a short write up I did about a recently passed law in Mexico regardless the warrantless tracking of cell phones.

I write to express three concerns about Ley de Geolocalización:

First, the collection of real-time geolocation data without a warrant appears to violate a general right of privacy as outlined in the Mexican Constitution¹:

Article 16:

Disturbances against any person's family, residence, documents or possessions...shall be made by a warrant issued by an authorized official.
…
Search warrants, which shall be issued in writing by judicial authorities exclusive, shall establish the place where the search will take place, the person or persons who will be arrested and the objects which will be looked for.
…
Private communications shall not be breached. Any attempt directed to infringe them will be considered as a criminal offence under the law.

And Article 12 of the Universal Declaration of Human Rights²:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Second, the proposed Article 133 says: "De todas las solicitudes, la autoridad dejará constancia en autos y las mantendrá en sigilo."³  Translated: "Of all the requests, the authority will record in the file and kept in secret." This appears to violate the principle of due process as provided in multiple sections of Mexico's Constitution and Article 8 of the Universal Declaration of Human Rights.

Third, cellular signals (and the geolocation data that is transmitted by them) are vulnerable to jamming , which would render the tracking of a subject's signal difficult or impossible. An individual who suspects his cell phone is being tracked does not need to be a technical wizard to reduce or even eliminate his signal trail from would-be trackers.

These are but three of many serious concerns about Ley de Geolocalización, but they are serious enough to question the constitutionality of such legislation.

¹ http://www.juridicas.unam.mx/infjur/leg/constmex/pdf/consting.pdf
² http://www.un.org/en/documents/udhr/
³ http://www.humanrightsgeek.blogspot.com/

Maryland smart meter opt-out bill gets unfavorable report in committee

So, HB 878, the smart meter opt-out bill that I testified in favor of, did not do so well when the House Economic Matters Committee voted:

I suspect that the committee was not so much voting against the opt-out provision, persuaded by the utility companies to defer to the Maryland Public Service Commission make the decision at their May 22nd hearing:

Either way, that's the next step. I don't know if I'll be able to make it to the hearing, but no doubt I'll be submitting my comments.

How do you even respond to something like this?

(this wasn't directed toward me, but...)

In the comments on a local news article, an African American woman wrote that "Bigots need a test to see if they're eligible to vote!!"

I'm not even sure how to respond to that stunning display of historic ignorance...

The best I could manage: "We had that before. They prevented people of color from registering..."

And to top it off, she also wrote (to someone else), "you are wrong and you shouldn't voice your opinion!!"

In the subtitle to my blog, I write that I am a "promoter of civility in political discourse..." and I really mean it. This is the sort of view that will get us nowhere. She's certainly entitled to it, of course; but the vitriol in today's society stems from this sort of attitude.

Maryland smart meter testimony (audio)

Here is the audio to my testimony this afternoon to the Maryland House of Delegates Economic Matters Committee on smart meter privacy. Yes, I know I talk too fast--this is a problem when you get three minutes and the delegates are impatient to get through the hearing. :-)

MD Public Service Commission smart meter hearing

Good news! Maryland's Public Service Commission is holding a hearing specifically regarding offering an opportunity for customers to opt-out of smart meters. The notice is posted below, check the details on how to offer your comments.

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.