The Electronic Frontier Foundation has advanced a lawsuit in which it alleges the City of Sacramento misused energy records to accuse residents of growing cannabis, often with disastrous results.
According to a statement from the digital rights group, local law enforcement authorities have worked with local power company, the Sacramento Municipal Utilities District (SMUD), to find households using a suspiciously high amount of energy.
The EFF commenced legal action against SMUD two years ago. This week it finished its discovery and filed a petition [PDF] with the judge in the case along with thousands of pages of evidence, allowing it to move forward with an October hearing.
According to the petition, the Sacramento Police Department (SPS) requested SMUD identify customers in specific ZIP codes whose energy consumption exceeded a monthly threshold, on grounds that the lamps used to grow cannabis indoors use a lot of electrical power.
“On 90 occasions the power company sent lists of addresses to local police,” said Adam Schwartz, privacy litigation director at the EFF.
The records that the EFF surfaced in discovery reveal some apparent oddities in methods used by SMUD and SPD.
For example, between 2014 and 2023, the threshold that SMUD and the SPD used for suspicious energy usage dropped from 7,000 kWh per month to 2,800 kWh. In discovery, one SMUD analyst admitted their own monthly usage was 3,500 kWh.
SMUD also appears to have been aware of an alternative explanation for high energy usage: running air conditioning to cope with the heat waves that are increasingly a feature of Sacramento’s climate.
“Make sure you guys do your own investigation because there’s tons [of] a/c,” one SMUD analyst allegedly told law enforcement.
SMUD analysts also warned law enforcement that high energy usage could be due to Christmas lights, electric heating, and “big houses”, the EFF petition states. The power company also noted that increasing use of electric vehicles can spike energy usage.
“What it shows us is that as time went on the Sacramento power company and the local police defined more and more people as engaged in suspicious behavior,” Schwartz said.
“When you get down to 2,800 kWh, you just have more and more people who are using this, whether it’s to heat their pool or to charge their electric car or to heat their house with electric heat pumps,” he continued.
Other biases
The discovery documents also suggest Sacramento authorities had a preoccupation with race. While law enforcement systematically requested details of suspicious customers, SMUD analysts would apparently ask them to request records for specific addresses. One such text message read: “Send me a request for [two particular addresses]. One is 10k plus, and the other is 4k, Asian….”.
Analysts would also look at credit databases and make racially charged judgments, citing an “interesting thing” about one address was “the multiple Asians that have reported there…” according to one communication from an analyst to law enforcement cited in the petition.
The EFF filed the lawsuit with the Asian American Liberation Network, which advocates for Asian American rights.
One other co-claimant is Alfonso Nguyen, who said police officers visited him and behaved abusively after receiving records from SMUD. Nguyen said he used medical equipment at home to regulate his body temperature. Police called him a liar, the petition says.
The EFF mentioned another police visit that saw a resident walk out in his underwear to the sight of police carrying guns. He had been mining crypto.
Police would also send letters, known internally as “nastygrams”, notifying customers they were under suspicion, according to the petition.
This isn’t the first time that the SPD has been in court for allegedly targeting Asian Americans for cannabis grow-ops, the document adds. It points to another 2019 case, Wang v. City of Sacramento.
Wired for surveillance
The EFF’s petition argues that smart electricity meters have made it possible to subject residents to greater scrutiny.
“What makes them different, first and foremost, is instead of having just a one-month snapshot into what is going on, you have, in the case of Sacramento, the data being collected in 15-minute increments,” Schwartz said.
The petition claims that SMUD analysts would use data from smart meters to conduct “painstaking” analysis of customer accounts and decide if their electricity consumption suggested a pattern.
The EFF is not alone in warning about smart meters’ potential to reduce privacy.
“In the privacy law context, the concern is that granular data on consumption could reveal habits and information which is personal and not in line with a consumer’s reasonable expectations,” said Odia Kagan, partner and chair of data privacy compliance and international privacy at law firm Fox Rothschild.
“In the context of government entities or law enforcement in the US this may also raise constitutional issues regarding legal searches,” she continued.
In Europe, the European Data Protection Board and the European Data Protection Supervisor have released guidance documents on this issue, according to Kagan.
“More recently, French data protection regulator CNIL issued formal notices to a number of smart meter providers for failing to obtain valid consent for the collection of granular (hourly) consumption data through smart meters and excessive data retention,” she said.
Get a warrant
US case law already offers a precedent for inappropriate energy company surveillance. Both Kagan and Schwartz point to another case, Kyllo vs. US (2001) in which law enforcement wanted to use thermal cameras to scan a private home from the street. That case decided that police would need a warrant because such scanning violated residents’ privacy.
In its petition, the EFF argues that SMUD’s use of energy records for dragnet surveillance constitutes a search and therefore violates both the Federal and California constitutions. The digital rights org also feels SMUD’s activities violate California’s Public Utilities Code.
The EFF has therefore sought a writ that would stop SMUD and the SPD from using the smart meter data as detailed above.
The SPD wouldn’t talk to us because of the ongoing litigation. SMUD didn’t respond. We’ll update this story if it does. ®