Taking the 'Long View' on the Fourth Amendment: Stored Records and the Sanctity of the Home

Abstract

In the wake of the California energy crisis of 2000-2001, the California Energy Commission and California Public Utilities Commission are aggressively pursuing "demand response" energy programs aimed at reducing peak energy demand. Demand response systems convey information about market conditions through pricing or reliability signals to customers, who in turn, hopefully, alter their electricity consumption choices. One complication with such systems is that they radically increase the amount of information about activities inside the home that the electricity company can see. In some parts of California, smart meters are being installed that will send information in intervals ranging from 15 minutes to one hour. This is 750-3000 times more information than the monthly meter read that has been the norm for many years. The case law generally considers information held by utilities to be "business records," subject to far less privacy protections than information kept inside the home. In this Article, Deirdre Mulligan and Jack Lerner argue that courts and policymakers should take "the long view" of technology that reveals information about activities inside the home, and give greater protection to such information - whether it is held by utilities or by an individual.

Keywords: fourth amendment, privacy, probable cause, energy, utilities, utility, kyllo, demand response, electricity, demand/response, smart meters

JEL Classification: K14, K40, K23