Three Energy Bills Look To Increase Fourth Amendment Protections For Americans
from the walking-back-the-third-party-doctrine dept
Senator Ron Wyden has introduced a trio of energy bills for the Senate's consideration. The three bills each have their own area of focus.
One bill [PDF] would direct the Department of Energy -- along with state entities -- to upgrade the flexibility and reliability of energy grids, thus limiting disruption during natural disasters. The second bill [PDF] creates grant programs for consumer-level renewable energy, providing incentives for purchase and deployment of solar panels, electric vehicles, and energy-efficient appliances. The third [PDF] tasks the DOE with leading the way for renewable energy storage R&D in hopes of driving costs down and providing more affordable alternatives to non-renewable energy sources.
Beyond their renewable energy focus, these three bills all have one thing in common: law enforcement agencies aren't going to like them. Each bill contains language erecting warrant requirements for law enforcement access of consumer energy usage data.
In each bill, under the "Privacy, Security, and Resilience" heading, Wyden has inserted a clause limiting warrantless access to energy customer data to identifying info only
CONSUMER INFORMATION.—
A governmental entity may obtain from an electric utility, third party aggregator, or other nongovernmental entity under an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena the—
(A) name of an electric consumer;
(B) address of an electric consumer;
(C) length of service (including start date) of, and types of service used by, an electric con sumer; and
(D) means and source of payment for such service (including any credit card or bank account number) of an electric consumer.
Everything else would require a warrant.
ELECTRIC USAGE INFORMATION.—A governmental entity may only require the disclosure by an electric utility, third party aggregator, or other nongovernmental entity of information regarding the use of electricity by an electric consumer (including monthly usage data, data at a greater level of detail or specificity, and information about electric use by specific appliances) pursuant to a warrant issued based on probable cause, using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction.
No more pulling citizens' electric bills without some articulable reason for doing so. The bill would also limit notification delays on these warrants to 180 days (although that period could be extended by a judge) and provides for suppression of evidence derived from warrantless access to energy usage information.
This will be a tough sell, considering law enforcement is very used to gathering up everything it can possibly construe as a third party record. Energy customers definitely know the energy they use is being tracked by their service provider. Even so, that knowledge is not the same as making the assumption that anything known by your electric company can also be accessed by law enforcement with almost zero paperwork.
A warrant requirement isn't much of a hurdle for law enforcement. What this would do is prevent fishing expeditions utilizing electric bills in hopes of stumbling over someone maintaining a home grow operation. This could mean people who shop for gardening supplies won't be having their electric bills constantly accessed by officers who assume the only hobby gardeners left are those in the marijuana business.
Still, it's a good move by Wyden. The bills may not go forward with these clauses intact, but they'll at least get legislators talking about the wealth of personal information law enforcement has warrantless access to.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 4th amendment, energy, ron wyden
Reader Comments
Subscribe: RSS
View by: Time | Thread
Do you ever notice that you consistently write on items of interest to dopers?
"What this would do is prevent fishing expeditions utilizing electric bills in hopes of stumbling over someone maintaining a home grow operation."
Two most consistent topics here are what helps dopers or copyright thieves, though you're too chicken to openly advocate.
[ link to this | view in chronology ]
Re: Do you ever notice that you consistently write on items of interest to dopers?
[ link to this | view in chronology ]
Re: Do you ever notice that you consistently write on items of interest to dopers?
"Dopers" aren't the ones inconvenienced (read: have their lives destroyed) by idiots with power and zero reason to assault them in their homes. If someone has an illegal grow op, there are tons of ways to find that out, starting with fooken probable cause.
You're too stupid to advocate for your rights. (Until it happens to you. Gawd spare the world your whining should that ever happen.)
[ link to this | view in chronology ]
Re: Do you ever notice that you consistently write on items of interest to dopers?
That is a big claim to make without any supporting evidence.
Did you scan all TD articles for key words or for phrases? Did said scan include the comments? If so, does your study differentiate the article hits from the comment hits?
If you did not perform a detailed study, then your claim is simply supposition. It's a shame too, as that would be interesting.
[ link to this | view in chronology ]
Re: Do you ever notice that you consistently write on items of interest to dopers?
Rights are for everyone. Thinking that it is okay to give them because it would also help 'bad people' is dangerous stupidity that must be stopped before it can cause more damage.
[ link to this | view in chronology ]
The vacuum of ominous effervescence distorts my realm.
The lunar sculptures ride eternity on their phantom ponies.
Hides and stock, consequences of forgetful delights and nourished envy for mine what is mine.
Mine is the glory of the stupefied, the bewildered among thieves and the ravenous, captured parrots.
Hang-glide the crescendo of harmonious acrimony to be forever nourished by the coupling of blight and plague.
Dancing without feet.
Singing without a face.
Biting without teeth.
Leaving no trace.
[ link to this | view in chronology ]
Well...
#1. This bill does not have the authority to enforce all of its provisions. In the case of micro-grids that are not operated via a multi-state entity then Congress has no authority to regulate.
#2. This bill does not even mention allowing citizens to construct and own personal energy generation and storage systems or to voluntarily disconnect from the grid without state or local interference, which again they would lack any authority to regulate.
#3. This bill looks like yet another, democrat/republican regulatory capture tool to give ONLY businesses the right to generate and make money off of energy production while we piss ant citizens get charged whatever they please. When it comes to big business, both parties bend right over whenever asked.
#4. By the time this bill is said and done with, it won't look anything like it does now. I highly expect it to be riddled with pork and riders that are completely unnecessary.
But by all means lets not allow this terrible situation to go to waste. Regulation prevents people from disconnecting from utilities because of corruption. Sure there are safety issues, but how about we require people to complete a safety/education course or sign up with a "licensed" business that will manage their systems for them so they don't have to learn. This would create so much competition for energy that the entrenched businesses would be sucker punched right in their dicks.
But no, we are not going to do that, we can't allow people to become self sufficient... it is very counter productive to the nanny state. People being able to take care of themselves soon ask why they even need government poking so closely into their affairs.
[ link to this | view in chronology ]
Re: Well...
#1: under current federal interpretation of the commerce clause, a decision to buy entirely locally impacts interstate commerce by virtue of the fact that a company in another state gets less money, therefore the feds can regulate micro-grids. Seriously.
#2: commerce clause again.
[ link to this | view in chronology ]
What's old is new
[ link to this | view in chronology ]
Re: What's old is new
Setting aside the inherent flaw in the Third Party Doctrine (that there is a difference between sharing information with a third party and sharing it with the government), would the Third Party Doctrine apply if you are required by law to share that information with a third party? It wouldn't make sense that the government would claim a consumer voluntarily shared the info about their power usage with a third party by legally requiring the consumer to use that monopolistic service...
Oh wait, this is our government we're talking about. Never mind. Of course it makes sense to them.
[ link to this | view in chronology ]
Re: Re: What's old is new
Why not just have them attach your electricity to your shed and you connect your house to your own solar/generator? Technically you're connected, but practically you're not.
[ link to this | view in chronology ]
Re: Re: Re: What's old is new
I believe that this is the definition of "load shedding" !
(Sorry, couldn't resist!)
[ link to this | view in chronology ]
Re: What's old is new
There are many such devices, they are known as switches.
[ link to this | view in chronology ]
Re: Re: What's old is new
Snitches get switches ?
[ link to this | view in chronology ]
Is it really about power?
[ link to this | view in chronology ]
The bigger purpose here is to break the warrant-less access to third party business records. Once an exception is created, the exception will be expanded to "everything regulated by the government" including the FCC, which would mean cell phone records.
He's pretty sneaky - but he's hitting something that likely doesn't have the support to go through. Nobody needs to pass this legislation to get re-elected.
[ link to this | view in chronology ]
Re:
Yes, I'm sure that somehow, the plainly-written wording of this law that only effects energy companies will somehow be twisted so that it applies to cell phone records.
/s
Seriously, though. Wyden may be trying to start a larger push-back against collection of warrantless access to third-party business records. If he wants to write a rule that applies to cell phone records, though, it won't be one limiting itself by saying "regarding the use of electricity by an electric consumer."
It's a good start to the discussion of the question, "What should the government be able to collect without a warrant?" but, as tightly-worded as it is, there's no way that this exception could be expanded without further legislation.
[ link to this | view in chronology ]
Re: Re:
If the third party doctrine is "broken" by this law, it creates a situation where lawyers could argue in court that the doctrine is no longer universal, and thus should not apply. It's literally a foot in the door thing.
Moreover, if these laws were to pass (unlikely) and the language not be challenged, then Wyden would likely be out there stuffing amendments into every other piece of legislation to accomplish the same end goal.
Basically, he knows nobody in congress would pass a straight law that killed the third party doctrine. So instead, he's going to try to do it piecemeal. Typical congress critter.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
"Could" being the key word. The law says they can't "require" the company to provide it, but doesn't forbid them from providing it or the government from asking. Besides, it doesn't forbid the government from requiring them to provide the customer's bank account number; they could then go to the bank and request the history of utility and garden-supply payments made from that account. Apparently one can get anything by claiming to be with FinCEN.
[ link to this | view in chronology ]
The warrant restrictions do not really do much in this case since law enforcement does not need a warrant to:
Once they have the payment info, it can be cross referenced with the payment companies without a warrant to get the amount the person is paying. With the total monthly bill and the rate of electricity, the amount of electricity that is being used can easily be calculated.
So this has good intentions but isn't effective.
[ link to this | view in chronology ]
Look quickly; this privacy language will disappear in the final bill...
This language will -- of course -- be stripped out at the last minute, and language inserted to allow utilities to sell these data 'to help defray the costs of the grid'.
I may have fallen off a turnip truck, but not yesterday...
[ link to this | view in chronology ]