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ISSN-0729-1485
Copyright 2016 University of Tasmania
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Introduction
Smart meters and grids are innovations in the field of Information and
Communication Technologies (ICTs), the goal of which is to enable consumers
to reduce their electricity consumption, and hence to protect the environment.
Their so-called smartness derives from them being ICT-enabled (as opposed to
regular, normal or dumb electric meters and/or grids). They are an
essential component of the European Unions (EU) ICT for Energy
Efficiency (ICT4EE) strategy. This strategy is itself an element of the EUs
energy efficiency policy, which underpins most of its environmental protection
work. However, as communication technologies, the processing of personal
data is at the core of the meters functioning. For this reason, the privacy
1
literature has commented on the serious risks they present to the rights to
privacy/data protection, not least because their roll out is foreseen in the whole
EU.
3
EAP 2
The European Commission has now long recognised the role that information
and communication technologies can play with respect to energy efficiency. Its
2009 Recommendation on Mobilising Information and Communication Technologies to
Facilitate the Transition to an Energy-Efficient, Low-Carbon Economy is probably its
milestone document. It advocates for the use of ICT4EE in the fields of
buildings, transport, electricity grids, and cities more generally.
8
EAP 3
Smart grids and meters contribute to energy efficiency in different ways. Smart
meters are basically a technology for the management of energy consumption,
and are therefore meant to lead to behaviour and consumption pattern changes.
Most of what they do is provide information concerning the use and price of
electricity in real time or at very regular intervals. Several factors influence
whether this information actually results in behavioural change. These include
the manner in which users receive feedback (eg via the internet or on in-house
displays, where in the house the meter is located, etc), or the ease with which
users can modify their consumption (through which devices, at home or
remotely, etc). However, they also improve the environmental performances of
the grid itself insofar as they are the link between the electricity providers and
the smart appliances. The automation and remote control of domestic
appliances enables electricity providers to balance the electricity load across
different times of the day. For instance they can automatically configure
appliances depending upon the availability and price of energy, as well as the
energy needs of the devices (eg a dishwasher is more flexible than lighting the
living room).
9
10
11
Unlike smart meters, which are the component of the smart grid specifically
dedicated to the management of energy consumption, the goal of smart grids is
to improve the overall environmental performances of the grid. To this end,
they can impact upon several elements of the grid. These include:
Energy storage solutions (eg the battery of electric vehicles can be used
as a virtual power plant, a kind of localised energy storage system); and
Energy consumption (this is done through the smart meter, see above).
12
14
OECD, above n 7, 7.
10
Ibid 37.
11
Ibid 31.
12
Ibid 3133.
13
14
Smits et al, Working Paper on the State-of-Art of Assessments of the Societal Impacts
of Smart Grids (Deliverable No 6.1, EU-FP7 EPINET Project, 31 October 2012) 6-9.
Hence the OECD refers to the definition of the International Energy Agency, which
defines smart grids as an
EAP 4
16
These processing capabilities present important risks. Cuijper and Koops argue
that what is at stake here is the inviolability of the home as well as the right to
family life (both of which are elements of the right to privacy enshrined in art
8.1 of the European Convention on Human Rights (ECHR), which hallows
ones right to private and family life, his home and his correspondence),
because smart meters make it possible to access data concerning what is taking
place within the home. As they put it, smart meters are a new example of
technology that makes it possible to see from the outside what takes place
inside homes and, all things considered, turns it into the proverbial glass
house. Indeed, much information can be deduced from the meter, either
directly or indirectly. One can mention the following: when a person is at home;
17
18
electricity network that uses digital and other advanced technologies to monitor and
manage the transport of electricity from all generation sources to meet the varying
electricity demands of end-users. Smart grids co-ordinate the needs and capabilities of all
generators, grid operators, end-users and electricity market stakeholders to operate all
parts of the system as efficiently as possible, minimising costs and environmental impacts
while maximising system reliability, resilience and stability.
OECD, above n 1, 10. From this perspective, the smart grid is less a technology in
itself than a combination of different technologies (including smart meters,
intelligent storage devices, sensors and communication networks), the point being to
circulate electricity and information flows in a bi-directional manner so as to
optimise energy supply, demand, and storage: OECD, above n 7, 32. The provisional
and indeterminate nature of the grid seems to comfort other analyses that argue that
smart meters are not necessarily indispensable to smart grids. However, we base
ourselves on the implementation of smart meters at EU level where they are present
as one of smart grids constitutive elements.
15
16
17
18
EAP 5
whether the occupant of the house comes back home accompanied (later arrival
at home than usual, and higher energy consumption the morning thereafter);
whether a person is absent for a longer period than usual; the types of
electronic devices in use; the activities people engage in when using these
devices; or even whether the electronic products are new or near the end of
their product lives. Research has shown that it is even possible to know what
programme or movie is being watched on television.
19
20
Another important concern is that of security breaches. Just like any digital
device, smart meters can be breached and this may have important
consequences if burglars were to find out when the household is empty for
instance. This risk is especially acute because the meters allow for remote
reading.
21
23
24
25
26
19
20
21
22
23
Ibid.
24
25
26
Gloria Gonzlez Fuster and Amandine Scherrer, Big Data and Smart Devices and Their
Impact on Privacy, (September 2015), Study PE 536.455 to the Civil Liberties, Justice
and
Home
Affairs
Committee
of
the
European
Parliament
21,
<http://www.europarl.europa.eu/RegData/etudes/STUD/2015/536455/IPOL_ST
U(2015)536455_EN.pdf>. Gonzalez and Scherrer have made this remark in the
context of big data uses for the so-called Internet of Things (IoT), of which smart
grids are seen as an important component. See also Cuijpers and Koops, above n 17,
25.
EAP 6
addition, profiles can be used for many other purposes. As a matter of fact,
information about energy usage is of high value to a number of third parties
including commercial companies. Often, these companies already know what
goods consumers buy. Smart meter data enables them to know where, when,
and how their products are being used. This additional information can then be
used for targeted and personalised marketing and advertisement. There are
also many other interested third parties, including law enforcement agencies,
tax authorities, welfare and social authorities, insurance companies (who can
for example establish specific usage requirements or require access to meter
data if they are to underwrite their policy), landlords, and employers just to
name a few. This raises many risks to the rights to privacy and data protection.
27
28
29
31
27
28
29
30
31
Cuijpers and Koops, above n 17, 2534; Kloza, Van Dijk and De Hert, above n 1, 23.
EAP 7
33
This section will focus upon the Dutch and German attempts to address these
privacy issues. The Dutch case is an interesting example of how to strike a
proper balance between the need for privacy protection and the environmental
objectives of the smart meters. The German case is interesting insofar as
Germany has implemented arguably the most advanced privacy by design
measures. Yet, both cases present shortcomings, so that it appears quite difficult
to find a way to uphold both citizens privacy and the meters environmental
goals.
32
33
34
Rainer Knyrim and Gerald Trieb, Smart Metering under EU Data Protection Law
(2011) 1 International Data Privacy Law 121, 121; European Data Protection Supervisor,
above n 16, 1011.
European Data Protection Supervisor, above n 16, 1215; Article 29 Data Protection
Working Party, 'Opinion 12/2011 on smart metering' (Working Paper No 183, 4 April
2011), 16-21; Gonzlez Fuster and Scherrer, above n 26, 21. More broadly, see also
Mireille Hildebrandt, Report for the Smart Energy Collective, Legal Protection by Design
in
the
Smart
Grid,
(February
2013)
30-44
<https://pilab.nl/wpcontent/uploads/2013/05/KEM-64P707-BRO-LPbD-in-SmartGrid_A4_FC_v4.pdf>
Colette Cuijpers and Bert-jaap Koops, Smart Metering and Privacy in Europe:
Lessons from the Dutch Case in Serge Gutwirth et al (eds), European Data Protection:
Coming of Age (Springer, 2013) 269, 278281.
EAP 8
In the wake of the adoption of the Bills by the Second Chamber, the Dutch
Consumer Union commissioned a critical study that highlighted two main
issues. Both the measurements frequency and communication thereof, as well
as the mandatory nature of the roll out were not deemed necessary in a
democratic society in accordance with the test contained in art 8.2 of the ECHR.
They thus violated the Convention. The Commission concluded by saying that
less privacy intrusive alternatives should be found without jeopardising
environmental goals. It referred to alternatives that process less data, or that
process anonymous or aggregated data for instance. This led to the rejection of
the proposed Bills by the First Chamber and to subsequent modifications.
36
37
38
39
35
36
37
38
39
40
41
EAP 9
very detailed personal data to grid operators. However, this does not put an
end to the measurements as such, which are a critical element of energy
efficiency.
42
43
The Dutch case therefore points to a conflict between privacy protection and the
environmental goal that cannot be totally reconciled. Even when unnecessary
processing is discarded, processing that potentially violates art 8 of the ECHR
remains. Further, from this privacy centric perspective, the only alternatives
envisaged are privacy by design initiatives that focus on minimising data flows.
Yet, as the German case perfectly epitomises, this approach presents
shortcomings too.
42
43
44
45
EAP 10
48
Measured data is stored locally within the gateway, which grants access to the
different actors on the sole basis of their data needs (ie receiver specific access
profiles). This is critical for the execution of access profiles. Each actor has
specific data needs in terms of data forms, purposes, and so on. For instance,
the distribution system operator (DSO) may have a need for real time data for
its network maintenance mission, but it suffices that such data be in aggregated
form. As a consequence, these access profiles define what data is to be
transferred to whom, at what frequency, after what type of pre-processing,
using what type of encryption (and other privacy enhancing technologies), and
so on. Such an approach upholds both the data minimisation and control
principles.
49
Because measured data is locally stored, the gateway can perform preprocessing operations, which greatly contributes to data minimisation. Taking
the case of highly dynamic, weather-dependent pricing, the gateway will be
able to perform the necessary tariffing. This means that suppliers will only
need aggregated data for their billing purposes no matter how dynamic the
pricing is.
50
51
46
47
48
49
50
51
Ibid 325.
Which is based upon a linear chain of processing where the data is first transmitted
to the metering point operator who collects long term measurement values. He then
passes it to the local distribution system operator who performs pre-processing
operations (as well as archiving, and generation of aggregated load graphs). The
distribution system operator then passes on this data either to the transmission
system operator for system maintenance (including load balancing), or to the
supplier for billing purposes.
Although this might require the intervention of an intermediary grid operator in
order not to track back the data: Pallas, above n 45, 328. On the fact that Privacy
Enhancing Technologies (PETs) were first dealing with anonymity see: Herbert
Burkert, Privacy-Enhancing Technologies: Typology, Critique, Vision in Philip E
Agre and Marc Rotenberg (eds), Technology and Privacy: The New Landscape (The MIT
Press, 1997) 125, 126129.
The same holds true for the transmission system operators (TSO) duty of load
balance.
One must also add the complete ex ante definition of legitimate data processing
within the law: Pallas, above n 45, 327.
This is done by summing up all consumption data for each tariff and by submitting
aggregated values of the tariffs to the supplier on a monthly basis.
EAP 11
53
Load peak balancing is problematic here too. The main issue is that it requires
data to be fed back into the grid, which both the supplier and the DSO need.
Under the local gateway model, the transmission system operator (TSO)
would be responsible for receiving the data and feeding it back into the system.
Beyond the issue of knowing whether it is possible to feed aggregate data or
not, another important area of concern is that the TSO would receive massive
amounts of data to be redistributed. So far the only alternative would be to
entrust the DSO (who operate at local level, see above) with the data, but that
would mean adopting the chained communication model, which is in direct
contradiction with the German end-to-end communication model.
54
53
Ibid 336.
54
Ibid 341342. Pallas hints at solutions but also notes their potential shortcomings.
Setting up data trustees who would be in charge of all the necessary pre-processing
(and be subject to all existing protections) would overcome the difficulties associated
with localised processing whilst still retaining possibilities for informational control.
However, such trustees would have to deal with massive centralised data pools,
unless several of them were to exist.
EAP 12
56
4.1 Introduction
We contend that the principle of sustainable development can be instrumental
in finding better privacy preserving alternatives. This entails two steps. The
first step involves defining the principle. This definition will show that
sustainable development is not limited to environmental protection, but that on
the contrary, it has three dimensions: environmental; social; and economic. As a
consequence, sustainable development also encompasses the protection of the
full spectrum of human rights. This is evident from the following discussion
concerning the manner in which the EU has upheld the principle. This
discussion also shows that in addition to providing a holistic approach to the
principle, the EU relies solely on energy efficiency for implementing the
environmental protection aspect.
The second step consists of a critical look into the energy efficiency paradigm.
This is done through the study of one of the sustainable development
disciplines known as sustainability science. Sustainability science shows that it
is possible to distinguish between strong and weak approaches to
sustainability, and that energy efficiency amounts to only a weak approach to
sustainability.
55
56
EAP 13
58
60
61
62
st
63
In the following decades, the UN has adopted two documents as official followups to the Rio Declaration. The first is the Johannesburg Declaration on Sustainable
Development, which is the document resulting from the 2002 World Summit on
64
57
58
59
60
61
Ibid.
62
Ibid.
63
64
th
EAP 14
th
th
65
66
68
70
71
65
66
67
68
rd
Stephen A Roosa, Sustainable Development Handbook (The Fairmont Press, 2 ed, 2010)
3579. See also: The Future We Want Resolution para 1, which pledges to ensure the
promotion of an economically, socially and environmentally sustainable future for
our planet and for present and future generations.
nd
See also Principle 7 of The Future We Want Resolution according to which States must
conserve, protect and restore the health and integrity of the Earths ecosystem.
69
70
Ibid para 6.
71
EAP 15
4.3 The
EUs
definition
of
sustainable
development
multidimensional and based upon energy efficiency
is
This section explores the manner in which the EU has implemented sustainable
development, through its sustainable development strategy (SDS). The EUs
SDS describes the sustainable development principle as:
73
In order to render this broad definition more workable, the EU has broken it
down into four key objectives, ten policy principles, and seven key challenges.
In a nutshell, the four key objectives represent the actual content of the
principle. Namely they are: environmental protection, social equity and
cohesion (ie respect for all human rights), economic prosperity, and the
meeting of international responsibilities. The ten policy principles are relevant
75
76
77
78
79
72
73
74
Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd session
183rd plen mtg, UN Doc A/810 (10 December 1948).
Communication from the Commission on A Sustainable Europe for a Better World: A
European Union Strategy for Sustainable Development, [2001] COM(2001)264 final, 2, 2-3.
The Council of the European Union Renewed EU Sustainable Development Strategy, No
10917/06 (9 June 2006) 2:
[The principle of sustainable development is] an overarching objective of the European
Union set out in the Treaty, governing all the Unions policies and activities. It is about
safeguarding the earth's capacity to support life in all its diversity and is based on the
principles of democracy, gender equality, solidarity, the rule of law and respect for
fundamental rights, including freedom and equal opportunities for all. It aims at the
continuous improvement of the quality of life and well-being on Earth for present and
future generations.
75
Ibid.
76
Ibid.
Safeguard the earth's capacity to support life in all its diversity, respect the limits of the
planet's natural resources and ensure a high level of protection and improvement of the
quality of the environment. Prevent and reduce environmental pollution and promote
sustainable consumption and production to break the link between economic growth and
environmental degradation.
77
78
79
Ibid. Promote a democratic, socially inclusive, cohesive, healthy, safe and just
society with respect for fundamental rights and cultural diversity that creates equal
opportunities and combats discrimination in all its forms. Ibid.
Ibid. Promote a prosperous, innovative, knowledge-rich, competitive and ecoefficient economy which provides high living standards and full and high-quality
employment throughout the European Union.
Ibid.
EAP 16
Finally, the seven key challenges represent concrete areas of action for the
principle of sustainable development to be implemented. Namely they are:
climate change and clean energy; sustainable transport; sustainable
consumption and production; conservation and management of natural
resources; public health; social inclusion; demography; migration; and global
poverty. The 2009 review of the strategy adds additional challenges such as
energy security, adaptation to climate change, food security, land use, and
sustainability of public finances.
81
The analysis of the EUs SDS is interesting in two respects. First, it is based
upon energy efficiency. This appears very clearly when analysing the key
objectives dealing with environmental protection. We observe that ecoefficiency is at the forefront and is instrumental to achieving the challenges of
climate change and clean energy, conservation of natural resources, etc. In this
regard, smart grids fit perfectly within several of these key challenges, and it is
therefore no wonder that they too are based upon energy efficiency. Second, it
follows that the EUs conception of sustainability is quite broad and farreaching as it encompasses the three constituent domains of sustainability
referred to earlier (environmental, economic, and social). Like the UN, the EU
considers that sustainable development is about both environmental, and
economic and social justice, thereby reflecting concerns addressed by so-called
first and second generation human rights. It follows that sustainable
development is as much about environmental protection as it is about
82
Encourage the establishment and defend the stability of democratic institutions across
the world, based on peace, security and freedom. Actively promote sustainable
development worldwide and ensure that the European Unions internal and external
policies are consistent with global sustainable development and its international
commitments.
80
81
82
Ibid 4-5.
Communication from the Commission to the European Parliament, The Council, The
European Economic and Social Committee and The Committee of the Regions on
Mainstreaming Sustainable Development into EU Policies: 2009 Review of the European
Union Strategy for Sustainable Development, [2009] COM(2009) 400 final, 2, 14.
This stance has been confirmed time and time again in many policy documents. The
Eco-innovation Action Plan for instance clearly links eco-efficiency to environmental
and climate change concerns: Communication from the Commission to the European
Parliament, The Council, The European Economic and Social Committee and The Committee
of the Regions: The Eco-Innovation Action Plan (Eco-AP), [2011] COM(2011) 899 final, 2,
9-10. See also the roadmap to resource efficiency in which the vision for a resource
efficient Europe is described as follows: By 2050 the EU's economy has grown in a
way that respects resource constraints and planetary boundaries. All resources are
sustainably managed Climate change milestones have been reached: Communication from
the Commission to the European Parliament, The Council, The European Economic and
Social Committee and The Committee of the Regions: Roadmap to a Resource Efficient
Europe, [2011] COM(2011) 571 final, 1, 3 (emphasis added).
EAP 17
Sustainability science makes the claim that sustainable development is a valueloaded notion, which cannot escape ethical discussions. In particular, the
normative vision of sustainable development as formulated in the Brundtland
Report (see above), though very abstract, puts the emphasis upon the notions of
needs and limitations. The concept of needs refers to that of the future
generations and the idea that their needs should be fulfilled in the same fashion
as ours. Very much linked to this is the concept of limitations, which suggests
that the Earths resources are finite and that we should therefore limit our
behaviours in order to take account of these limits.
84
85
83
84
85
Jill Jger, Risks and Opportunities for Sustainability Science in Europe in Carlo C
Jaeger, J David Tbara and Julia Jaeger (eds), European Research on Sustainable
Development - Volume 1: Transformative Science for Sustainability (Springer-Verlag,
2011) 187, 190192.
Tom Dedeurwaerdere, Sustainability Science for Strong Sustainability (Edward Elgar
Publishing, 2013) 11.
Ibid 29.
EAP 18
what extent can we use resources and capital and still preserve the capital that
is essential for safeguarding the environment?).
86
88
90
So, what is the use of this distinction between strong and weak sustainability
for our analysis of energy efficiency? Proponents of sustainability science argue
that energy-efficiency is an embodiment of weak sustainability. They evidence
this statement by demonstrating that it is based upon the assumption that
economic growth can be decoupled from material throughput through
86
87
88
Ibid 18.
89
Ibid.
90
Ibid.
EAP 19
92
It appears from the observation above, however, that it is highly doubtful that
energy-efficiency can properly implement sustainable development. Indeed, in
order to have meaningful sustainable development, understood as the
maintenance of natural capital, what matters is the absolute reduction of the use
of natural resources, that is, the absolute decoupling of human and natural
capital. This is the only way to ensure that critical thresholds are not trespassed,
and thus, to safeguard natural capital. However, by promoting fullsubstitutability, energy efficiency leads to a relative decoupling of natural and
human capital, meaning that the extent of the substitution between natural and
human capital bears little to no influence on the actual use and depletion of
natural resources.
In order for absolute decoupling to occur under the energy-efficiency scheme,
the rate of eco-efficiency improvement must be large enough to offset the
growth rate of natural resources use. However, evidence suggests that (relative)
decoupling of economic growth from natural resources uses shows mixed
results at best. In the case of smart grids, early research has shown that the
energy efficiency gains are not obvious at all. They depend upon a number of
factors such as whether consumers have adequate access to the right type of
consumption information, and the consumers personal propensity towards
saving energy. Further, even when energy efficiency gains are made, the most
optimistic figures indicates gains of up to 15%. Arguably, this is far from
enough in order to achieve absolute decoupling.
93
94
91
92
93
94
95
EAP 20
smart grids, which energy suppliers and operators see as a new market bearing
promises of increased profitability.
96
98
Sanjay Goel et al, Smart Grid Security (Springer, 2015) 42; Kloza, Van Dijk and De
Hert, above n 1, 16.
97
98
99
EAP 21
100
For some theoretical proposals as to what it might look like, see Nick Srnicek and
Alex Williams, #Accelerate: Manifesto for an Accelerationist Politics in Ray Mackay
and Armen Avanessian (eds), #ACCELERATE# the accelerationist reader (Merve
Verlag, Urbanomic, 2014) 347; Ray Brassier, Acclrer La Raison in Laurent de
Sutter (ed), Acclration! (Presses Universitaires de France - puf, 2016) 157; Yves
Citton, Acclrer Lcologie in Laurent de Sutter (ed), Acclration! (Presses
Universitaires de France - puf, 2016) 205.
EAP 22