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.



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Comments on “Three Energy Bills Look To Increase Fourth Amendment Protections For Americans”

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22 Comments
Anonymoussays:

Do you ever notice that you consistently write on items of interest to dopers?

Gee, I was thinking this harmless to minor good, until you again ZINGED naive little me with the REAL purpose:

“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.

orbitalinsertionsays:

Re: Do you ever notice that you consistently write on items of interest to dopers?

Uh, no, the idea is that _not everyone has to suffer invasions of privacy because some slacker is looking for “dopers” by trawling though everyone’s records._

“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.)

Anonymoussays:

Re: Do you ever notice that you consistently write on items of interest to dopers?

“Two most consistent topics here are what helps dopers or copyright thieves .. “

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.

Anonymoussays:

Re: Do you ever notice that you consistently write on items of interest to dopers?

“Don’t worry about the gun I have pointed to your head. It only shoots bad people.”

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.

Rapnelsays:

Alas, I too have seen the leaves of the green melancholy.

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.

Anonymoussays:

Well...

I read the bill, I like the bill, but there are some problems as usual.

#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.

Bergmansays:

Re: Well...

Those problems might not be as problematic as you think.

#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.

Tin-Foil-Hatsays:

What's old is new

I’m surprised there isn’t an electricity backup device that creates a barrier between the consumer and the electric company. It would protect privacy and provide backup electricity if the power goes out. It’s piece of mind for anyone dependent on medical devices or medicines that require refrigeration. Of course not having your ice cream melt is just a bonus.

Anonymoussays:

Re: What's old is new

And then you get to a state like Florida, which by law, requires EVERYONE to be connected to the power grid. No premise is allowed to be off grid.

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.

John Snapesays:

Re: Re: What's old is new

And then you get to a state like Florida, which by law, requires EVERYONE to be connected to the power grid. No premise is allowed to be off grid.

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.

MyNameHeresays:

Mr Wyden, the master of writing innocuous looking laws that actually have a bigger purpose.

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.

Anonymoussays:

Re:

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.

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.

MyNameHeresays:

Re: Re:

I think you miss my point.

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.

Anonymoussays:

Re: Re: Re:

Wyden and warrants. Wow, that combination rustled your jimmies something fierce, didn’t it? I mean, what would cops ever do if they weren’t allowed to arrest people over rotting plant matter in their trash cans on suspicion that it’s marijuana when it turns out to be tea leaves? God forbid cops have to use their brains or critical thought!

Anonymoussays:

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.

"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.

Anonymoussays:

The warrant restrictions do not really do much in this case since law enforcement does not need a warrant to:

(D) means and source of payment for such service (including any credit card or bank account number) of an electric consumer.

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.

Anonymoussays:

Look quickly; this privacy language will disappear in the final bill...

“Each bill contains language erecting warrant requirements for law enforcement access of consumer energy usage data.”

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…

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