Privacy Rights, Operational Data, and the US Government

Thinking about smart energy and the 4^th of July generated an essay too large and too personal for publication. A shorter version re-oriented toward the buildings world appeared in the July issue of Automated Buildings magazine (www.AutomatedBuildings.com). This piece pulls together the more personal views from the same article. If you came here from Automated Buildings to find out more about my views, I recommend looking to my previous post on the Internet of Energy.

Several readers have written me that privacy has no place in US Law, and was only discovered as an emanation from a penumbra (in Justice Douglas’s words). I think that this is a profound misreading of the constitution, arising from an awful ruling in a good cause in the 1870’s. The Slaughterhouse Case created a framework that profoundly limited the privileges of citizenship, gutting a key component of the 14^th amendment, and by implication, eliminating the 9^th amendment from any real meaning.

The 9^th amendment, the shortest and simplest of the bill of rights, states “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Federalists argued that the whole Bill of Rights was dangerous as it would be impossible to list all rights it would be dangerous to list some, lest there would be those who would assert that government was unrestrained as to the omitted rights. The 9^th amendment was so clear and so revolutionary that all parties have tried to ignore it ever since.

The first direction in the 14^th amendment is that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” These statements hang together on natural law, and on those rights of a held by all citizens, or by all men. As the old saw goes, some statements are so clear that it takes years of legal training to misinterpret them.

Privacy and its twin, the right to be left alone, which Justice Douglas referred to as “the most fundamental right,” are essential to one’s personal pursuit of happiness. Privacy is at the heart of the 4^th amendment, which prohibits searches of papers and possessions. Privacy and self-determination were at the heart of the concerns of the first amendment, restricting the reach over conscience held by the state churches of New England. They were fundamental to the founder’s concept of natural rights. Natural rights are not granted by the government, and nor can they be legitimately taken away (alienated) by government.

A simple reading of the simple words of the Constitution would include natural rights among the privileges of citizenship, as opposed to the obligations of subjects. Recent scholarship shows that Jefferson expunged the work subject from the Declaration, substitution citizen. The Ninth amendment and the privileges and immunities clause of the 14^th, have been ignored for years. Recent opinions from the Supreme Court have invoked each of them.

The rejuvenation of the 9^th and the 14^th can’t come quickly enough. Courts have ruled that inspection of cell phones, including contacts and email, is no concern of the 4^th amendment. The Justice Department argued last spring that there is no expectation of privacy over cell tower operational data, pinpointing your location at all times. New laws enable direct federal control and tracking of the internet. Direct load management of energy use, one competing model of the smart grid, would expand the trove of operation data about our lives and homes beyond anything previously seen.

All because of men of good think society need this information. As Milton wrote, “Necessity, the tyrant's plea".

The strains between a good new idea, so necessary and so important, and basic liberty and natural rights are not new. We can see them in quotes from presidents early in the last century, in their 4^th of July addresses.

From Woodrow Wilson, our most progressive president:

“The Declaration of Independence did not mention the questions of our day. It is of no consequence to us unless we can translate its general terms into examples of the present day and substitute them in some vital way for the examples it itself gives, so concrete, so intimately involved in the circumstances of the day in which it was conceived and written.”

From Calvin Coolidge, so conservative he as thoughtless:

“About the Declaration there is a finality that is exceedingly restful. It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern. But that reasoning can not be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people. Those who wish to proceed in that direction can not lay claim to progress. They are reactionary. Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers.”

Today, there is a new urgency to privacy issues. We live our lives on-line and connected. Tweets and cell calls expose our every move. Digital storage costs have plummeted; there is now no reason to ever throw out information. With tracking and record-keeping essentially free, there is really no impediment to the government tracking everyone, all the time and keeping it forever. Cheap and powerful search matched to that cheap and boundless storage means nothing ever goes away. As the CEO of Google stated :Privacy is dead, get used to it.”

Without privacy, and mandatory rules concerning privacy, no part of our lives will be free from government meddling, from Wilsonian good intentions. We need to reassert privacy, all privacy, and rediscover the subversive rights of the 9^th and 14^th amendments.

The US has always been the land of the frontier. “Go west, young man!” Horace Greely famously spoke. West was where you could make something of yourself, perhaps a new something that was not what you once were. The West was where you went to start over. The west was the creator of a classless world, one where your parents did not matter because no one had a past. Failure to protect privacy is the final closing of the frontier.

Spam & Smart Grid Operations, Privacy & Civil Rights

Spam has changed how we think about email, and automated monitoring and control needs to change how we think about privacy. If you make something very much easier and cheaper, it is no longer what it once was. Smart phones, smart buildings, and smart grids are now at the center of privacy law. Privacy is the ground upon which the battle for the preservation of the 4th amendment will be won or lost.

A serious of court decisions, each looking more to a desired end than to the constitution, are using technology to redefine what “reasonable” means in the 4th amendment to the US Constitution. If we are not careful, smart grids might destroy the last remaining realms of privacy, that is, our privileges to be free from interference in our lives. Soon, the 4th amendment and its protections may mean nothing at all.

English common law declared the home inviolate even from the King and the King’s men at least as early as 1300. In 1760, William Pitt famously stated the right: "The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail, its roof may shake, the wind may blow through it. The rain may enter. The storms may enter. But the king of England may not enter. All his forces dare not cross the threshold of the ruined tenement."

The fourth amendment has its roots in a growing violation of this right using the general warrant as a tool. A general warrant is an arrest warrant that does not name or describe the person to be arrested, or a search warrant that does not specify the premises to be searched or the property sought. Such warrants were outlawed in England in the middle ages. In the 18th century, their use was revived with through the writ of assistance. Then as now, the regulation of commerce was used to erode liberty, and writs were issued to in the form of general warrants to assist in enforcing trade and navigation laws. These writs authorized customhouse officers to search any house for smuggled goods without specifying either the house or the goods.

The resentment bred by these writs of assistance contributed strongly to revolutionary fervor. Still feeling the sting, the memory of these writs led to the adoption of the 4th Amendment to the US Constitution two decades later:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The language is clearly written; its meaning is clear to anyone whose understanding of English has not been clouded by the study of the law. No means No.

Technology and Commerce are the hammer and tongs on the privacy of the home. A walled garden or a large property are secure from prying eyes. Regulation of commerce says we must manage Cannabis. Planes change the definition of public view. Technology erodes the concept of privacy and chips away at the 4th amendment.

Ten years ago, a police department, suspicious about indoor plantations, scanned houses with an infrared scanner. They discovered a hot spot, and used it to get a warrant, and found grow lights in the attic. The owner, Kyllo, fought his conviction, fought it all the way to the Supreme Court, and won. The 4th amendment held against advancing technology. Unfortunately, that ruling held the seeds of the complete destruction of privacy and the 4th amendment. The ruling held that “when . . . 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.” Unraveling all the negatives, the ruling states that no warrant is required to authorize government use of any technology in general public use.

Today, such scanners are in common use. Many utilities offer to subsidize scans of your home. It appears that today, there would be no requirement of a specific warrant before scanning your home—or before scanning every home in your neighborhood.

The fourth amendment never protected against observation by government agents of public activity. There was always a practical limit on such monitoring because it had a real cost. It took as long to listen to a wire tap as it took to have the original conversation. Sending a squad car to tail a suspect cost the use of a squad car and the salary of a policeman for an entire day. Only an unashamedly corrupt society would assign the resources of a Stasi to watch all citizens.

Email has eliminated all cost barriers to sending unsolicited communications, and so created spam, hated for its use by legitimate and illegitimate organizations alike. Auto-dialers reduced the human time required to make unsolicited phone calls, creating a desire to regulate the free use of the phone system. In a similar way, automated monitoring and analysis has eliminated the practical barriers to pervasive monitoring of all citizens at all times. Just as spam storms required us to build policies to control unwanted messages, so the automation of monitoring requires us to expand our notions of privacy just to maintain the fourth amendment as it was.

Current case law and judicial rulings are pushing in the opposite direction, toward the negation of the 4th amendment.

Law enforcement in the US is arguing that there is no privacy protection for any information routinely collected. This is particularly troubling as with the other hand, government is mandating that information be routinely tracked. Some years ago, government mandates (“to support E911”) required that all cell phones be trackable with high precision, higher than the cell companies required for their own business. Last week, the Justice department argued that as this information was routinely gathered, there was no expectation of privacy surrounding such information. This month, our government has argued that it should be able to track the whereabouts of any and all of us today and for the previous 120 days, without warrant, without explanation, and without judicial review.

Smart grids demand that smart buildings respond to changes in the availability of electricity in the grid. The largest utilities, particularly the California utilities, are advocating business models of direct load control, tracking the use of all devices in a home. A decade ago, engineers found they could track the use of all systems in a house from the meter; they could even distinguish from the signature of the heater whether a waterbed was occupied or unoccupied, or whether the occupants of that bed were active or sleeping. Complete access to building operational data is a loss of privacy more profound than a search, because it continues over time.

One of the key deliverables named in the UCAIug’s OpenADE requirements for tracking energy usage is the “Law Enforcement Interface.” The only good thing I can say about that is they decided to leave it out of version 1.

This last election cycle saw state employees abusing their authority to harass and discredit a private citizen who discomfited their favored candidate. One political team claimed that the previous administration can and would do anything, abuse any right to have its way. The other team has expressed horror at a rank intimidation of political discourse found in the current administration collecting emails of dissenters. How can those on either side honestly accept the 4th amendment suffering a death of a thousand cuts through the acceptance that technology erodes privacy?

The complete loss of privacy *is* the complete negation of the 4th amendment. Exposing operational data to the power of data mining *is* the complete loss of privacy.

The founders were literate, and they would have read Milton, who in Paradise Lost wrote:

And with necessity,
The tyrant's, plea, excus'd his devilish deeds.

As C.S. Lewis updated the formulation, "'Useful,' and 'necessity' was always 'the tyrant's plea'." There is nothing so useful or necessary that we allow untrammeled collection of such information by smart grids. There are business and technical models that avoid such collection. We should choose them.

The Fourth Amendment and Smart Grids

If we are not careful, smart grids are in direct collision with the bill of rights. Some smart grid activities define or enable business practices for balancing energy supply and demand. There is a direct link between commonly accepted business practices and some definitions of our constitutional rights. With the best of intentions, we may be casually removing significant barriers to some of our most cherished freedoms.

The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures. During the American Revolution, British forces made extensive use of writs of assistance, a sort of general search warrant that could be extended and used without ongoing review. In response, the Fourth Amendment created a standard whereby government searches must be issues only on a discovery of probable cause, and specifically limited in location and as to the matters being searched for, based on specific information supplied to a court.

The Fourth Amendment is the most explicit source of any support for privacy that I can find in the Constitution.

Dr Orin Kerr is one of the most respected legal voices on Fourth Amendment issues. Dr Kerr blogged this week on the relationship between technology, common practices, and developing standards for reasonable search (see reference below). Specifically, Dr Kerr was exploring the ten year old Supreme Court ruling in Kyllo vs. United States that defines the limits of police use of high technology in warrantless searches.

In cartoon form (IANAL), police scanned houses with some sort of IR scanning system and noted a hot spot in the attic. From the hot spot, they deduced that the defendant was growing marijuana under grow lights in his attic. Kyllo asserted that this was a prohibited search under the 4^th amendment. The question was, in effect, is a non-intrusive search using high tech an unreasonable search. Clearly, if Kyllo had been growing the marijuana in his front yard, there would have been no dispute when police noticed this when on routine patrol. Previous rulings had stated that police fly-overs are legal searches because non-police could fly over the property and spot the plants; the property owner has no reasonable expectation of privacy applied to aerial views of his property.

In this case, the search was ruled unconstitutional; Kyllo won. The Supreme Court adopted a test designed to let the result change with social practice: “when . . . 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.” Because infrared temperature sensing was not in “general public use,” the thermal imaging was a “search” that required a warrant.

Dr. Kerr was blogging on whether under this standard, the search in Kyllo was still prohibited. Remote infrared temperature-sensing has become quite common in a wide range of applications. I heard an ad on the radio yesterday for a remote home thermometer enabling mom to take a sleeping child’s temperature from the door without waking the child. Thermal images of houses to reveal gaps in insulation have become common; many utilities will pay for them as part of energy efficiency efforts. The question was, then, is this high tech device now considered to be in in “general public use,” and if so, can the police use it without a warrant without violating the Fourth amendment.

And so, at last, I loop back to smart grids.

Some business practices we are defining, particularly in what we are calling Managed Energy, can routinely monitor the activity of every device in a home. If we establish these practices as general practice, have we eliminated any Fourth Amendment shield against the use of the same techniques by police?

Analysis of electrical power consumption reveals more than you might guess. Research a decade ago explored what engineers could learn from these signals. One anomaly occurred almost every day in a home somewhere between a half hour and two hours after the owners left each day. Further research determined that the family dog waited each day until it was sure that its owners were really gone for the day—and then climbed onto the warm waterbed. They were detecting the change in the pattern of water heater use. Further research demonstrated an ability to distinguish how much activity was on that waterbed…

When we define business practices for the smart grid, we are doing more than solving a a difficult engineering problem. We may be creating practices that re-define our precious constitutional rights. Privacy is more than a best business practice for smart grids.