Smart Grid Privacy: Laws and Implications

I was recently asked several questions about my work with the NIST Smart Grid privacy group and associated issues. Here are a couple of those questions, and my answers to them…

Question: Are there any laws or regulations that would govern utilities’ use of personally identifiable information?
Actually there are many laws and regulations that could apply. Our NIST Smart Grid privacy group is actively researching, through our connections with NARUC and other utilities organizations, all the types of state laws that may exist which govern how utilities, or any other entity with access to Smart Grid data, may use the associated PII.
A topic that is important and interesting to think about is how non-PII data items, when combined with certain other non-PII data items, can actually become PII. In other words, aggregating non-PII to form PII. A collection of data items that, when each individually is not considered, could become PII and reveal insights into personal lives and activities. For the sake of our discussion I’ll call these “multi-part PII.”
Because consideration of the concept of multi-part PII is so new, I’m not aware of any law that governs such “new” types of PII. Plus, there is no comprehensive data protection law or regulation within the US that will protect all types of PII in all ways.
Much also depends upon any privacy policies that the utilities, or the other smart grid entities, have published or posted. The entities involved certainly must follow their legally binding privacy policies under Section 5 of the Federal Trade Commission Act, which prohibits unfair and deceptive practices. If an organization makes a promise within their posted privacy policy and then does not follow through with implementing business practices and tools to support those promises, then they could be seen by the FTC as being deceptive and unfair under the FTC Act. The FTC has applied sanctions using the FTC Act many times against organizations who didn’t keep their privacy policy promises. So this could govern certain activities involving smart grid PII, and perhaps even multi-part PII, depending upon how the policy is worded.
Because of the complexity of the smart grid, and the many different types of organizations/businesses/vendors that will be part of this vast energy management network, there are many other possibilities for U.S. laws, regulations and standards that could apply as well. A few of these include:

  • The Computer Fraud and Abuse Act
  • Electronic Communications Privacy Act
  • Gramm Leach Bliley Act and supporting rules
  • At least 48 state and territory breach notice laws
  • Federal Rules of Civil Procedure (eDiscovery Rule)
  • North American Electric Reliability Corporation (NERC) Critical Infrastructure Protection (CIP) standard
  • Title XIII of the Energy Independence and Security Act of 2007

There is also the pending Cybersecurity Act of 2009 bill (S.773) that may be enacted and should be kept in mind.
And, since portions of the smart grid may go into Canada and Mexico, Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) and Mexico’s Federal Freedom of Information Act (FOIA) may also apply.
And there are likely many others not listed here. We are still exploring those possibilities.
Question: Do you see this issue have broader implication beyond utilities and consumers?
Yes, there are going to be many entities initially involved with the smart grid who are neither a utility or consumer, such as the meter vendors. History shows that when opportunities arise, there are many types of businesses and organizations that will take advantage of those opportunities to gain market share for their products, to do a wide range of research (such as for product development, consumer activities, and so on), to do criminal investigations, and so many other types of activities.
Just consider the Internet. It evolved from a very early type of small scientific research network for the U.S. Department of Defense network in the early 1960’s. Their small closed network evolved into ARPANET in 1969. ARPANET quickly grew, and publicly available services appeared in 1979 when CompuServe offered personal computer users email and other types of communications paths. Once the public was able to get access, innovations and advances occurred at an even greater speed, and by 1992 ARPANET had evolved to the infant of the Internet we know today. Look at all the great benefits the Internet has provided. Look also at all the types of cybercrime and privacy breaches that have occurred because privacy protections were not built into the Internet as it evolved. Just think; the Internet grew as computer technologies were evolving.
Now consider the smart grid. It is another type of network which will be a huge interconnected network from the very start. It will basically skip infancy and adolescence and leap right into full functioning adulthood from the very start. It will have advanced technologies from the very start. It took the Internet a few decades to get to the point where entire online industries were formed, and entirely new types of privacy breaches, cybercrimes and frauds emerged. It will take a fraction of that time for new businesses, services and products to emerge to take advantage of this new network of energy use data.
It will also take a fraction of that time for new types of security exploits and privacy breaches to emerge, with no comprehensive laws currently existing that are specific to such new misdeeds. And then imagine the possibilities of merging the smart grid with the Internet. It will happen quickly, and perhaps at the get-go.
It is important that we consider all the possible and imaginable privacy issues now so we can foresee the problems before they happen, and then establish the standards and rules to help prevent them from happening. Such a task is, indeed, large and challenging. However, that is what makes the work that the NIST Smart Grid privacy group, along with the work of the NIST Smart Grid information security group, so important. My hope is that we can clearly identify and communicate the concerns, and then help to establish effective rules to ensure privacy protections are built in from the very beginning while the smart grid is still in the embryonic stage.

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