The Accidental Gentrifist: Winning the Lungs & Synapses

As funny as that sounds, far less funnier is this seemingly unrelated story run by local vanilla news outlet News 8 Austin late last year. Again, for the mouse-impaired: On 7 November, the local station ran a story about Austin Energy sharing its customer data with the Austin Police Department, specifically usage spikes that might suggest the commencement of a marijuana grow operation. While they did note that the practice is in accordance with state law, how’s this for confidence-inspiring: The APD is “confident” they’re following the law, even though they can’t actually explain specifics, as Attorney General Greg Abbott hasn’t let them know how much they can share with you and me.

Thinking I'd write a piece on this, I made a few inquiries to News 8 Austin, NORML, and the Texas ACLU. What I wanted to know was, why has everybody forgotten about Kyllo v. United States?

Short story: I got nowhere. But then the Austin Chronicle’s Jordan Smith came galloping through the reefer smoke to reveal the sad, sordid details. (Smith’s 16 November article is here.) For those of you with an arthritic click finger, here’s the low-down:

At least one APD drug officer has been cooperating with at least one other entity who specializes in data mining. Basically, if they fish through your records and find you're using more kilowatts than they feel reasonable for your size home, you can expect some scrutiny. Add a little circumstantial evidence, and knock-knock—jack-boots are on your Welcome mat. How’s that for a Kill-a-Watt Challenge? How’s that for probable cause?

(Even though the Supreme Court expanded the definition of probable cause in 1983 [Illinois v. Gates], producing a test known as “totality of circumstances”—it would seem highly unlikely that any set of Supremes would use this broadened definition to affirm the legality of search warrants and subsequent home invasions based solely or even primarily on data mining.)

Of the emails between the APD drug cop and the data analyst obtained by the Chron, this little gem stands out (excerpted from an email from the cop to the data miner):

"Thanks again for your help. ... I am going to be writing a little memorandum trying to get you some recognition ... so don't be surprised when your boss says something. ... Gonna try to keep it low key (since we really can't afford direct publicity) but it should at least be a little feather in your cap."

I wonder: why wouldn’t they want the world to know what they’re up to? They’re heroes, after all. Cleansing our streets of the dreaded indoor weed farmer. They should be proud. They're like The Punisher and Microchip.

Well, for starters, it’s probably unconstitutional. The lawyer for at least one man thinks so, and cites (yes! I was actually, presciently right about something!) the previously mentioned Kyllo v. United States.

In Kyllo, basically a guy got busted for growing pot in his home after a search warrant was issued based on agents’ observation that his garage was warmer than the rest of his house (i.e., Kyllo was using high-intensity lights, and of course he was). But Scalia threw out the findings of the search, because the thermal imaging constituted an “intrusion into a constitutionally protected area,” and Kyllo’s reasonable expectation of privacy, and the protection of the intimate details in his home. “To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment.” Furthermore, a non-physical search (read: illegal search) is pretty clear-cut when “the technology in question is not in general public use.”

(Please don’t take my word for it. Read Justice Scalia’s post-game wrap-up here.)

From Smith’s article, Attorney David Dudley, who represents a property owner arrested for a grow operation uncovered at one of his leases, after exactly this kind of data mining: [electricity consumption] offers a ‘window’ into personal details, revealing “when someone is home or not, when someone showers or goes to bed…There are all sorts of personal things you can find out about somebody. The bottom line is that [utility use alone can reveal] a lot [of] very personal, intimate things.” And it is unreasonable to assume that anyone (other than AE and the APD) would readily have this information.

In Kyllo, the decision hinged, in part, on the relative unavailability of thermal imaging to the public. While utility records are not sealed from the public (unless you request it), the average citizen would be hard-pressed to casually observe your electricity usage. They would need, at the least, to enter your property (yard), or use-high-powered binoculars, and also be pretty deft at algebra and record keeping. The cops on the other hand, can sit at their computers and browse data mined from the power company itself. I would imagine Mr. Dudley will argue that this fulfills the “technology” aspect of the Kyllo decision. Hopefully he and his client won’t have to go all the way to Washington. But, if they do, they have an opportunity to nix such police snooping, and protect residential utility information from idle police trolling for criminals.

Or maybe the Supremes could save us all the trouble and ask Austin Energy spokesman Ed Clark, who parrots the same police logic cited in the News 8 story, above: “Yes, it's legal…because we wouldn't do something that's illegal.”

Socrates, anyone?

Personally, I like the following syllogism:

1. Buying Afghani weed contributes to the Taliban.
2. Buying homegrown weed profits local growers instead of the Taliban.
3. Thus: Buying homegrown helps fight the War on Terror.