By Ken Macon – Reclaim The Net
California’s robust privacy protections are facing a critical test as the Electronic Frontier Foundation (EFF) and community advocates press forward with a lawsuit to dismantle what they describe as an illegal and biased surveillance operation run by Sacramento’s public electric utility.
In a legal filing submitted last week, the EFF laid out evidence that the Sacramento Municipal Utility District (SMUD), which serves more than 650,000 customers, has spent over a decade monitoring detailed home electricity data and funneling it to police without a warrant. The organization calls this an unconstitutional “dragnet surveillance” program that unlawfully invades household privacy on a massive scale.
We obtained a copy of the filing for you here.
“This case is about Sacramento Municipal Utility District’s…dragnet surveillance of SMUD customers’ homes using sensitive and confidential energy usage information,” the brief begins. “The decade-long surveillance violates the California Constitution and a state privacy statute.”
SMUD’s so-called “smart meters,” installed in nearly every home it serves, transmit power usage in 15-minute intervals to the utility multiple times per day. This data, the lawsuit argues, offers a detailed portrait of home life, including sleep patterns, occupancy, and even personal routines. “SMUD analysts can, in effect, use the data to digitally peer into a person’s home,” the brief explains.
EFF alleges that SMUD has routinely handed over customer information to local police departments, including names, addresses, and usage history, without any individualized suspicion or judicial oversight. In many cases, these disclosures were based solely on arbitrary consumption thresholds. “SMUD has turned over…the names, addresses, and electrical consumption information of more than 33,000 customers through a zip code list,” the brief states.
Rather than respond to specific criminal investigations, SMUD analysts proactively generate and send “lists, opinions, and tips” to law enforcement, the lawsuit claims. These lists are sometimes based on entire ZIP codes, resulting in thousands of homes being flagged. In July 2023 alone, SMUD sent data on over 10,000 customers. After police narrowed the list, a SMUD analyst still had “4,800 locations left…to check patterns on,” according to internal records.
Out of that list, just four homes were flagged as having possible “pattern usage” of electricity, raising serious concerns about the indiscriminate scope of the surveillance.
The EFF brief makes clear that even SMUD employees have expressed doubts about the validity of the program. One analyst admitted, “I used 3500 [kWh] last month” himself; well above the current 2,800 kWh threshold for suspicion. Another wrote in an internal email that the threshold being used was “scraping the bottom of the barrel.”
The racial implications are equally disturbing. Internal messages cited in the lawsuit reveal SMUD analysts directing law enforcement attention to homes based not only on electricity usage but also on racial cues. “Send me a request for [two particular addresses]. One is 10k plus, and the other is 4k, Asian,” read one SMUD analyst’s text to police. Another stated, “interesting thing about the [address] is the multiple Asians that have reported there through Experian in 2017.”
EFF and co-counsel are representing the Asian American Liberation Network and individual plaintiffs like Alfonso Nguyen, a Vietnamese immigrant who was wrongly targeted by law enforcement based on his power usage.
Nguyen, who uses electric medical equipment due to a spinal injury, was visited by sheriff’s deputies who accused him of illegally growing cannabis, due to high energy use. When he denied it and refused a search, he was called a liar. “As a result of the encounter, Nguyen feared for his physical safety and felt that his privacy had been invaded,” the brief notes.
Another individual, Brian Decker, was forcibly removed from his home at gunpoint, in his underwear, after SMUD flagged his overnight usage pattern. He was not growing marijuana; he was mining cryptocurrency.
EFF argues that the entire data-sharing system operates without valid consent. SMUD’s so-called “Privacy Policy,” buried in a website footer, does not provide customers any genuine opportunity to approve or reject surveillance. “There is no mechanism by which a customer can give or refuse consent…it is a non-conspicuous link at the bottom of SMUD’s website,” the brief says.
This program, EFF insists, not only violates Californians’ constitutional protections against unreasonable searches but also directly contravenes the state’s Public Utilities Code. That law clearly states: “A local publicly owned electric utility shall not share, disclose, or otherwise make accessible to any third party a customer’s electrical consumption data…except as provided…or upon consent of the customer.”
EFF is now asking the court to permanently bar SMUD and Sacramento Police from engaging in this mass data mining. “The whole exercise is the digital equivalent of a door-to-door search of an entire city,” the brief states. “The Court should stop this rogue and unreasonable dragnet.”