As another first-impression point, though, I think the biggest fear about the government knowing our toaster usage isn’t that they’ll bust us. One of the tough points about criminal procedure cases is that the defendant is always guilty; otherwise, there wouldn’t be an evidentiary dispute. For most of us, that isn’t a problem. I suspect that it’s the uncertainty – the uncertainty about what the government could do if they knew our toaster habits. It is like the rumor that the FBI/CIA/NSA has a file on each of us. Is that true, what’s in there, and what could they do to us? If there were greater transparency, either through meter design (as Luke suggests) or pamphlets from the utility company, it wouldn’t be as worrisome.

Even to the extent that certain usage patterns are suggestive of criminal conduct, the enterprising extralegal entrepreneur should reasonably be expected to internalize some of the burdens of nondetection. Promoting criminal operational efficiencies should not be an independent good in our Fourth Amendment jurisprudence, and by utilizing a more complex and risk-aware means to accomplish his objective, our extralegal entrepreneur should be able to carry on just fine (i.e., using alternative or supplemental power sources, turning on other appliances to distort an otherwise telling usage pattern, conspiring with neighbors to bleed power from their lines, adjusting the time when criminal activity is conducted to conform to high energy demand periods, moving the production operation frequently to avoid generating a quantum of incriminating data points at any one location, or reducing product output to avoid detection).

But the legitimate motivating concern doesn’t seem to be for the interests of criminal cottage industries, rather in the intrusion into our private lives by the government – be it for detecting unlawful activity or nosiness. And we can certainly imagine more sophisticated technology that could record every instant of our electricity usage (to whatever degree of specificity would make this thought experiment compelling). If the slightest spike, drop or surge pattern were preserved, and if this maximally complete data could be parsed to identify specific uses, much the way sounds can be detangled into discreet noise patterns and interpreted, then what of this technology that would allow its reader to interpret a pulse of current and tell us what make and model of toaster oven ran for four minutes at 9:34 a.m. on January 1, 2084, and precisely which brand wireless router accessed a network drive exactly eleven minutes later, from a Lenovo ThinkPad T-Series laptop computer, and that the drive in question was a Maxtor Shared Storage 300GB, all from the pattern of the electric current delivered to the home?

I understand the authors’ concern here, since it does seem bizarre to ground access to that information in the location where it can be found rather than confronting the first-order question of whether the degree of intrusion access to the information allows is constitutionally permissible absent a showing of probable cause before a neutral magistrate. But that might not be so bizarre – although the information about the wireless router, computer and network drive might concern us most, isn’t it the toaster oven that should? If not, then it will really trouble you to know that far more invasive information is readily available to the government from your Internet service provider (ISP) and on the servers of the websites one visits by the recording of your Internet protocol (IP) address. This information, unlike the worst our electrical usage could say about us, often constitutes direct evidence of criminal activity (e.g., at this date and time, so-and-so downloaded this image of child pornography).

So why do we (or should we) really care more about the toaster oven then? Why does it seem more like an instance of Orwell’s Telescreen? Maybe it’s that everyone pretty much knows that you give up a lot of your privacy by going online, so by making the choice to virtually invite the world into your home you assume the risk associated with that choice; but nobody knows or expects that simply by using an electric current you are giving up detailed information about what appliances you use and when. Maybe it’s that you can take measures to preserve your anonymity by masking your client IP address identity online, but no one can block the utility from recording details about the service it provides to you. Maybe it’s that accessing the Internet remains a nonessential or eccentric activity which one can imagine not doing, so that when one does access the Internet, the privacy interest one cedes is clearly carved out and delimited, whereas subjecting all instances of domestic electricity use to scrutiny is impermissibly intrusive owing to its broad scope. Maybe it’s that one can choose to access the Internet from any number of places for the same criminal activity (and with the advent of wireless technology, from almost anywhere), making the reduced privacy interest activity-centered rather than tying it firmly to the place where that activity occurs (as if virtual acts occur “no place”); the activity itself is subject to greater regulation whether it be conducted in the home, in a car on a laptop computer, or in the Chestnut Tree Internet Café nibbling on Chocorat, whereas everything else for which one uses electricity in the home is distinctively domestic. Perhaps they are equally problematic, or perhaps neither are, but my sense is there is at least an apparent tension between the two intrusions.

The other party of interest worth scrutinizing in this third-party-doctrine affair is the company collecting the information the government seeks. Big Brother isn’t able to compel the collection of the type of information we’re worried about (in most cases), but is entitled to gain access to it (upon at least some minimal showing) if the third party does collect it for its own purposes (and to enjoin its routine destruction once investigators develop an interest in it). This is worth reflecting on, lest we think that Google or any other corporation decrying governmental intrusions and rallying with us for privacy is actually on our side. Rather, they are the intruders. To deflect attention from the extent of their own close watching, corporations engage in Privacyspeak, as if they were on our side rather than then the source of ungood. Granted, there are some reasons for evaluating intrusions differently when the information is used by the government rather than by corporations or credit bureaus (let’s assume), but we cannot be lulled into identifying the government as the (primary) source of evil here. Why shouldn’t a best practices approach to corporate data collection focus on whether and when it is acceptable for information to be gathered, stored and analyzed about particular consumers at all?

To the extent that we fail to object to and remedy abuses of our privacy by corporations, how do we make a compelling argument that the business records doctrine is defective? Privacy preferences can be reflected in the market, and perhaps this could be an additional argument is support of delivery-side deregulation of the California public utilities (rather than just the failed generation-side deregulation of a few years ago). An excellent example is the pre-paid cellular phone card – it allows virtually anonymous use. Admittedly, some of the best evidence I have ever used to crack several nearly unsolvable cases was cell site data, call detail records and subscriber information (and I had to write search warrants in almost all instances). But we should ask ourselves – if it is okay for that information to be collected and for it to be “out there,” why isn’t it appropriate to help solve a murder?

The last observation I’ll share (I had only intended to post a few brief reflections!) is that gaining access to these records is incredibly frustrating for investigators, and all the company has to do is say “No.” In that case, investigators on the state level have to write search warrants (an incredibly burdensome process which slows an investigation, disrupting its pace and endangering its solvability, often allowing victimizers to disappear before our paper is issued, served and returned). Compounding this is that diving into document/record-based evidence often results in the revelation of a small clue, requiring another warrant to get to the next one, and so forth; in many investigations its questionable whether you’d be able to prove up a case before the statute runs, owing completely to this iteration of “piggy back” warrants (not for want of objective solvability). Even though there is a lowered standard for subpoenas duces tecum, they are of no use on the local level (comprising the vast majority of criminal investigations) because they are not used in the investigatory (pre-charging) stage. Where they are used, there is a process for the custodian of the records to object to and quash the SDT. Although rarely successful, it does provide judicial review prior to production, and what more could we be wanting here?

Federal agents also have access to administrative subpoenas and grand jury subpoenas, in addition to the search warrant process, and these procedural safeguards remain as formidable inefficiencies when discovering the information is truly critical to an investigation and function as deterrents to unnecessary paper chases, and in no case does an investigator get to just pick up the phone and ask because he’s curious. The current system strikes me as far from the dire characterization of the authors which “forces us to confront the possibility of a world with virtually no constitutional protection constraining government prying into citizen’s private acts whenever those acts are recorded or can be inferred from data collected in the private sector.” Unless we want a system that encourages police misconduct, an adequately burdensome but not prohibitive process might be what we should aim for given that so much personal and private information is out there in the world – if the process were to become irrationally overprotective of information held by less-interested third parties, we might be incentivizing the development of confidential informants or the unlawful and undisclosed procurement of investigative leads never intended for production at trial.

Would it not be easier to design the meters so they take privacy into account? Or let new customers opt-in to a more detailed monitoring scheme, allowing for the storage and retrieval of historical data should they want the option to dispute future bills or in order to qualify for some added incentive, only after a disclosure of and consent to the possible future uses of the information?