The Sacramento County Utility District (SMUD) and the Sacramento Police Department are running an illegal data sharing scheme, with the police making bulk requests for customers’ energy usage data to enforce a cannabis grow ordinance, according to a new EFF lawsuit.
The secret data sharing arrangement violates SMUD customers’ privacy rights under state law and the California Constitution, while disproportionately subjecting Asian and Asian American communities to police scrutiny.
Alfonso Nguyen knows all too well the harms that resulted after his home energy data was shared with law enforcement. Nguyen is a resident of Sacramento County and has owned a home for over 20 years. An immigrant from Vietnam, Nguyen is an adjunct counselor working in disability support programs at a nearby community college. He lives with his elderly mother.
Like nearly all other residents in the area, electricity to his home is supplied by SMUD, the community-owned local utility.
One evening between 2015 and 2017, two deputies from the Sacramento County Sheriff’s Department showed up to his home around 9 pm wanting to search it. They didn’t have a warrant, so Nguyen asserted his rights and said they could not enter. One of the deputies then pushed open his door, pushed past Nguyen, and searched the home. The search yielded nothing.
The sheriff’s department didn’t stop there. In 2020, two deputies came a second time—this time saying SMUD told them the home was using too much electricity, and accusing Nguyen of growing marijuana, which neither he nor anyone else in his home have ever done.
One deputy put his hand over his holstered gun, as if preparing to draw it. The deputy yelled at Nguyen, called him a liar, and threated to return with a warrant and arrest him. Later, when Nguyen contacted SMUD, the utility first denied that it had shared any of his energy usage data before admitting it had disclosed the data to law enforcement.
It was far from an isolated incident. SMUD since at least 2017 has handed out protected customer data to the Sacramento Police Department, which asks for it by zip code on an ongoing basis—without a warrant or any other court order, nor any suspicion of a particular resident—to find possible illicit cannabis grows. The practice has been a big money maker for Sacramento, yielding at least $100 million in fines levied on owners of properties where cannabis was found over two years. About 86 percent of those penalties were levied upon people of Asian descent.
SMUD’s bulk disclosure of customer utility data turns its entire customer base into potential leads for law enforcement to chase.
EFF and law firm Vallejo, Antolin, Agarwal, and Kanter LLP filed a lawsuit September 22 challenging the practice on grounds that it violates SMUD customer’s privacy rights. State law says public utilities generally “shall not share, disclose, or otherwise make accessible to any third party a customer’s electrical consumption data ....” The California Constitution’s search and seizure clause prohibits unlawful searches absent, at minimum, individualized reasonable suspicion of a violation of the law. But law enforcement lacks any suspicion until SMUD discloses its lists of consumers’ energy data.
The program also targets Asian homeowners for fines. According to the amended complaint, a SMUD analyst who provided data to police excluded homes in a predominantly white neighborhood. One police official removed non-Asian names on a SMUD list and sent only Asian-sounding names onward for further investigation.
EFF is representing in the lawsuit the Asian American Liberation Network, a Sacramento-based nonprofit; Khurshid Khoja, an Asian American Sacramento resident, SMUD customer, and cannabis industry lawyer rights advocate; and now Nguyen, who has joined the case because he wants to ensure that no one else is ever subjected to the type of law enforcement encounters he endured.
“The illegal sharing of customers’ private energy usage between SMUD and law enforcement has to stop,” Nguyen told EFF. “SMUD should be working for its customers, not the police.”