A recent City of Naperville (“Naperville”) smart meter case is a flashback to first year constitutional law. The Naperville Smart Meter Awareness (“NSMA”) group and several of its members, citing numerous health, safety, security and privacy concerns over smart meters that wirelessly transmit data about electric use to Naperville, sued Naperville in the Eastern District of Illinois in a four count complaint raising the following constitutional issues regarding Naperville’s deployment of smart meters:
- Federal rights under the Public Utility Regulatory Policies Act of 1978
- Fourteenth Amendment due process rights
- Fourteenth Amendment unreasonable search
- Fifth Amendment government taking
Judge John Lee in a 24 page Memorandum Opinion and Order granted the City of Naperville’s motion to dismiss. In the opinion, Judge Lee writes that NSMA did not exhaust all state remedies for its claims and did not prove radio frequency from the meters is actually harming people. He also found the city has precautions in place to keep customer data from being disclosed without their consent and rejected the claim the city will collect personal details about customers’ lives.
Even assuming that a smart meter is technically able to measure electrical usage and load to such minute detail, and one were able to ascertain personal details about a resident’s life from such data, the mere existence of such a capability does not reasonably lead to an inference that it is actually being employed,
– Opinion, page 21.
The order provides excellent constitutional analysis on the smart meter issues that will be helpful to many utilities. However, stay tuned for part two because Judge Lee gave NSMA a big break; the group has 14 days to file an amended complaint to cure deficiencies. This may be a good but expensive decision for Naperville, since it may have to relitigate many of same issues when the amended complaint is filed.