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Naperville Smart Meter Awareness v. City of Naperville

United States District Court, N.D. Illinois, Eastern Division

July 7, 2015

NAPERVILLE SMART METER AWARENESS, an Illinois not-for-profit corporation, Plaintiff,

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For Naperville Smart Meter Awareness, an Illinois not-for-profit corporation, Margaret Mary Wood, Scott J Derengowski, Kimberley Wells Hamilton, Jo Malik, Jennifer Stahl, Tom Glass, Kim Bendis, Glenn A Mendoza, Amanda Rykov, Plaintiffs: Doug Elston Ibendahl, LEAD ATTORNEY, Attorney at Law, Chicago, IL.

For City of Naperville, Defendant: Margo Lyn Ely, LEAD ATTORNEY, Kristen June Foley, City of Naperville, Naperville, IL.

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JOHN Z. LEE, United States District Judge.

Naperville Smart Meter Awareness (" NSMA" ), an Illinois not-for-profit corporation, has sued the City of Naperville (" the City" ) over the installation of smart meters in its members' homes. NSMA has moved for leave to file its Third Amended Complaint for Injunctive Relief in accordance with Federal Rule of Civil Procedure 15(a)(2). NSMA reasserts its claims pursuant to 42 U.S.C. § 1983, alleging violations of its members' rights to freedom from unreasonable search under the Fourth Amendment (Count I), and equal protection of the laws under the Fourteenth Amendment (Count III). NSMA also alleges violations of its members' rights to privacy and freedom from unreasonable search under the Illinois Constitution (Count II). For the following reasons, the Court grants in part and denies in part NSMA's motion for leave to file its Third Amended Complaint.

Factual Background

What follows is a brief summary of the allegations set forth in the proposed Third Amended Complaint.

NSMA is an Illinois not-for-profit corporation whose stated mission is to " educate, engage and empower families, friends and neighbors to advocate for a fiscally responsible and safe utility meter solution in Naperville, Illinois." 3d Am. Compl. ¶ 8. In Naperville, all residential electrical utility services are provided by the Department of Public Utilities-Electric, a company

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owned and operated by the local city government. Id. ¶ 16. In January 2012, the Naperville Department of Public Utilities-Electric began replacing its customers' analog electricity meters with smart meters as part of a local program called the Naperville Smart Grid Initiative. Id. ¶ ¶ 25, 155. The Naperville Smart Grid Initiative is funded in part by the U.S. Department of Energy, which received $4.5 billion of federal tax dollars under the American Recovery and Reinvestment Act of 2009 for the purpose of modernizing the nation's electrical power grid. Id. ¶ 25.

Like analog meters, smart meters can measure customers' total residential usage for monthly billing purposes. Id. ¶ ¶ 46-47. Unlike analog meters, smart meters are also equipped with wireless radio transmitters that, when activated, send usage data via radio-frequency waves to nearby neighborhood " network access points," which then relay usage data to Naperville's Department of Public Utilities-Electric. Id. ¶ ¶ 41-42. While analog meters are capable of measuring only total accumulated consumption of energy (" total kilowatt hours used over a month" ), smart meters measure aggregate electricity usage much more frequently--in intervals of fifteen minutes that " include real power in kWH and reactive power in kVARh." Id. ¶ ¶ 31, 40. Smart meters have the ability to collect data consisting of " granular, fine-grained, high-frequency type of energy usage measurements" (so-called " Interval Data" ) totaling to " over thousands of intervals per month." Id. ¶ ¶ 35, 43.

NSMA alleges that Interval Data allows the City to collect more than just the aggregate data necessary for billing purposes previously available through analog meters. Id. ¶ ¶ 35, 44. The City also collects Interval Data from participants who voluntarily choose to partake in the Demand Response Program, which promotes the use of less electricity during periods of high demand. Id. ¶ 58.

As an alternative to having new smart meters installed in their homes, Naperville residents may opt to have their old analog meters replaced with " non-wireless meters." Id. ¶ 148. These " non-wireless meter alternatives" are essentially smart meters with their radio transmitters deactivated so that they emit no radio-frequency waves and must be read manually by a reader meter each month. See id. ¶ 149. Non-wireless meters are able to collect " the same highly detailed Interval Data" as smart meters. Id. Residents who choose the non-wireless meter alternative must pay a one-time installation fee of $68.35, plus an additional monthly fee of $24.75. Id. ¶ 150. NSMA describes the non-wireless meters as a " marginally lesser harm from among the two unsatisfactory alternatives." Id. ¶ 152.

NSMA asserts a number of concerns arising from the implementation of smart meters. Most notably, because smart meters are capable of taking data measurements in frequent, discrete increments, NSMA alleges that the smart meters present privacy risks that analog meters do not. Id. ¶ 73. Specifically, NSMA claims that a home's smart meter data history is capable of revealing " intimate details about the personal lives and living habits of NSMA members" and that an inspector of this detailed history can determine " when [residents] are away from home or asleep . . . and [when they are using] different appliance[s]." Id. ¶ ¶ 74, 88, 90. NSMA posits that through the use of mechanisms such as " energy disaggregation software" and " intuitive observation," the City--and by extension law enforcement ...

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