Smart Homes Data

'Who is responsible for data processing in smart homes? Reconsidering joint controllership and the household exemption' by Jiahong Chen, Lilian Edwards, Lachlan Urquhart, Derek McAuley in (2020) International Data Privacy Law comments 

The growing industrial and research interest in protecting privacy and fighting cyberattacks for smart homes has sparked various innovations in security- and privacy-enhancing technologies (S/PETs) powered by edge computing. The complex technical set-up has however raised a whole series of legal issues surrounding the regulation of smart home with data protection law. 

To determine how responsibility and accountability should be fairly assumed by stakeholders, there is a pressing need to first clarify the roles of these parties within the existing data protection legal framework. This article focuses on two legal concepts under the General Data Protection Regulation (GDPR) as the mechanisms to (dis)assign responsibilities to various categories of entities in a domestic Internet of Things (IoT) context: joint controllership and the household exemption. 

A close examination of the relevant provisions and case-law shows a widening notion of joint controllership and a narrowing scope for the household exemption. While this interpretative approach may prevent evasion of accountability in specific cases, it may lead to the unintended consequence of imposing disproportionate compliance burdens on developers, contributors, and users of smart home safety technologies. By discouraging users to adopt S/PETs, data protection law may likely lead to a lower level of privacy and security protection. The differential responsibilities among joint controllers as envisaged in case-law may reconcile the tensions to some degree, but certain limitations remain. The regulatory dilemma in this regard highlights some underlying assumptions of data protection law that are no longer valid with regard to a smart home, and thus calls for further conceptual and empirical studies on fair reassignment of responsibility and accountability in a domestic IoT setting. 

 The authors argue 

 Smart home Internet of Things (IoT) devices are notoriously badly secured. Commercial practices geared towards usability see devices shipped with default passwords, but users rarely change these. This has led to cases of IP connected cameras being remotely accessible via search engine Shodan, enabling babies to be monitored sleeping. Similarly, poorly secured devices can be more vulnerable to remote access attacks, implicating them in botnets. We have seen this in the case of the Mirai, Persirai and Reaper botnets. Concurrently, there are growing concerns about the personal data-driven economy resulting from new compliance requirements and high fines under the General Data Protection Regulation (GDPR). A key issue is the dominant cloud-based big data analytics infrastructure dominating IoT product and service design. It enables creation of cheaper devices with data collected locally, analysed remotely, and the service provided locally again. 

These IoT privacy and security concerns have sparked a growing research agenda in creating local data storage and analysis infrastructures, where data analytics is brought to the data, as opposed to centralizing the data. This provides users more control over who accesses their data, why, for how long, and so forth. From a regulatory perspective, the European Data Protection Supervisor (EDPS) has extolled the virtues of such personal information management systems (PIMS) sitting at the edge of the network, as has a recent Royal Society report. 

Development and adoption of security- and privacy-enhancing technologies (S/PETs) are not just priorities on the EU’s Digital Single Market Strategy, but indeed encouraged or even required by the GDPR. Yet, the uptake of these technologies will depend on a suitable legal environment with appropriate regulatory incentives provided for developers and users of such technologies and without imposing excessive compliance burdens on them. We however have concerns over the potential impact of data protection law on S/PETs in a domestic IoT context, especially considering how responsibility and accountability are assigned to various groups of actors under the current legal framework. The notion of joint controllers and the household exemption are therefore of significant relevance as they serve as the GDPR’s primary mechanisms to identify the parties responsible to ensure data protection requirements are met. 

To illustrate the implications of joint controllership and the household exemption for domestic IoT S/PETs with edge computing solutions, this article will look at two ongoing research initiatives. The Databox project (funded by the UK's Engineering and Physical Sciences Research Council, EPSRC) demonstrates how data protection principles can be built into data processing architectures by design. With personal data stored and analysed on a local PIMS, Databox aims to enable users to benefit from the use of their data without compromising their data privacy. Work by Urquhart et al. considers how it enables accountability, as required in Article 5(2) of the GDPR, by providing mechanisms both for substantive compliance, but also demonstrating compliance. Another EPSRC-funded project, Defence Against Dark Artefacts (DADA), addresses smart home cybersecurity risks by identifying strategies for providing security threat management at the edge of the network. This is achieved by screening the behaviour of devices on the network, and detecting when activity is abnormal. If data flows are going to unexpected destinations or exhibiting abnormal patterns, this may indicate threat actors with remote access or stealing information. 

The development and operation of both Databox and DADA, however, relies heavily on the collection and analysis of device data (which may turn out to be personal or even sensitive data) and involve a wide range of actors who may or may not be categorized as data controllers or data subjects. The complexity of legal relationships in IoT has been highlighted in the literature, and S/PETs will only further increase such complexity. Stakeholders surrounding such systems include architectural developers (eg Databox and DADA developers), third-party component builders (service/app/driver providers), device manufacturers and users, while homeowners, family members, neighbours and visitors may be affected. All these complexities pose pressing questions in both theoretical and practical terms about how responsibilities are managed, and who the different stakeholders are. 

In a scenario where, for example, a homeowner has set up the smart home with such an S/PET solution, should they be treated as a (joint) data controller? If so, can they reasonably claim they are exempted from the controller obligations on the basis of a purely household activity? What about the other involved parties, such as developers of the S/PET system? Fundamentally, and as will be shown below, these questions may eventually come down to the fair allocation of data protection responsibility and accountability among a range of stakeholders. Edge computing for smart homes holds great promise with its architecture designed to keep the use of personal data inside the home, but it remains unclear whether using such technologies would turn homeowners into liable joint controllers. As the rest of this article will show, the way joint controllers and the household exemption have been construed in case-law—with the intention to provide seamless protection to data subjects—may end up running counter to this objective by creating deterrence against the uptake of S/PETs such as Databox and DADA.

Victorian Smart Meters Program

The Victorian Auditor-General’s Report Realising the Benefits of Smart Meters [PDF] strongly criticises the state's electricity metering program.

The report states

In 2006, the Victorian Government committed to the Advanced Metering Infrastructure (AMI) program which involved replacing existing electrical metering infrastructure in all Victorian residential and small business premises with digital smart meters by December 2012. At that time, this was expected to involve the rollout of 2.6 million meters to 2.4 million sites. Before the rollout commenced in 2009, the deadline for completion was changed to December 2013. The 2005 business case anticipated a net incremental benefit of $79 million relative to a 2004 cost-benefit analysis for the rollout of interval meters.

Key expected benefits of smart meters were to:

• improve consumers’ ability to monitor and control their electricity use, potentially allowing for cheaper and more efficient energy use 

• reduce the cost to industry of planning and managing power supply, potentially leading to lower retail prices for consumers 

• increase retail competition through new services, potentially resulting in a greater choice of retail offerings to consumers.

In 2009, VAGO released its report, Towards a ‘smart grid’ — the roll-out of theAdvanced Metering Infrastructure, which was highly critical of the original business case. It also made a number of recommendations including to improve governance and stakeholder engagement, reassess the economic viability of the smart meter program by updating the cost-benefit analysis (CBA) to reflect existing and emerging risks, and to assess the impact of changes to scope and underlying assumptions.

In 2011, the government reviewed the AMI program and decided to continue to roll out smart meters to all Victorian residential and small business customers by 31 December 2013.

This audit assessed whether the Department of Economic Development, Jobs, Transport & Resources (DEDJTR) has effectively addressed recommendations from VAGO’s 2009 audit, and can demonstrate that the AMI program is delivering expected consumer benefits and is set up to maximise longer-term benefits.

By the end of 2015, Victoria's electricity consumers will have paid an estimated $2.239 billion for metering services, including the rollout and connection of smart meters.

The net position of the program has changed significantly since its inception, and there is now expected to be a substantially increased net cost to consumers over the life of the program.

In contrast, while a few benefits have accrued to consumers, benefits realisation is behind schedule and most benefits are yet to be realised. Current estimates suggest that approximately 80 per cent of the expected benefits could be achieved. However, there are significant uncertainties and risks associated with achieving these benefits, which are not within the control of the state.

There is a risk that the AMI program's most recent 2011 estimate of a net cost of $319 million to consumers may worsen as costs are projected to increase and benefits remain decidedly uncertain. Other factors increase this risk even further, such as the move to national competitive retail metering from 2017, which could further diminish the benefits of the AMI program and expose those consumers who choose to have the smart meters installed under the AMI program replaced by other, competitively provided meters to additional costs.

The 2011 CBA is the fourth time that the costs and benefits of the AMI program have been analysed in just 10 years. In each analysis since our 2009 audit the estimated costs have increased and the benefits have diminished. This continual change highlights the serious flaws in the program’s original business case which we identified in our 2009 audit, as well as the unrealistic assumptions around the achievability of the costs and benefits which were beyond the control of the state. DEDJTR has advised that it is now reassessing the expected benefits of the program for a fifth time, as many of the 2011 assumptions have materially changed.

The three departments which have administered the AMI program have taken action to address most of the recommendations from VAGO's 2009 audit. They have strengthened program governance structures, the oversight and management of risks, improved communications with consumers and regulators, and increased the scrutiny of costs to inform regulatory decisions. However, these changes have not been sufficient to overcome the manifest problems with the estimation and control of costs and benefits, and to ensure the realisation of the projected benefits for consumers.

By the end of the 31 December 2013 deadline, 92.79 per cent of the installation of smart meters was completed. By June 2014, the installation was 98.62 per cent complete, however, approximately 13.5 per cent of households and small businesses did not have a smart meter that could be remotely read. Given that consumers have been progressively paying for the program since 2009 and ultimately pay the full costs, DEDJTR must focus now on actions that will accelerate the achievement of any benefits to consumers and avoid any further increase in the net costs of the program.

The report's Findings are -

Costs will increase

The average residential household has paid around $760 since 2009 in metering services, which included the costs associated with installing and maintaining smart meters and related infrastructure and systems. These fees are applied to electricity bills but are not itemised. Despite departmental action to influence the Australian Energy Regulator’s (AER) scrutiny of metering costs, total metering charges imposed on consumers over the period 2009 to 2015 have been approximately $28 5.7 million , or 11.4 per cent,over the distributors' original forecasts. The costs for 2014 and 2015 are forecast to be 88 per cent and 28 per cent over budget respectively due to a delay in the installation of meters. Costs are forecast to reduce from 2013 to 2023 but increase again sharply from 2024, if the meters are replaced from that time as anticipated by the 2011 CBA. Consequently, there is a risk that the expected net cost to consumers over the life of the program may increase above the most recent estimate of $319 million. Benefits realisation is falling behind schedule In 2011, the government commissioned a CBA which has become the benchmark against which DEDJTR measures benefits realisation. Benefits realisation as at 2014 had already fallen behind the 2011 CBA forecast and current projections are that consumers can only expect to achieve approximately 80 per cent of the full benefits to 2028. However, achieving these benefits is subject to many assumptions that have not materialised, and is dependent on the actions of many stakeholders.

The single largest benefits category of the AMI program relates to the avoided cost of replacing and manually reading the old accumulation meters. However, accumulation meter costs have been replaced with smart meter costs that are much higher. While the program has reported $591.99 million in these avoided costs to 2014, which is in line with the 2011 forecast schedule, this does not represent any additional value generated by the AMI Program. Meanwhile, the other benefits categories, which represent actual added value from the AMI program, are falling well behind schedule. This is due, in part, to the delay in the finalisation of the smart meter rollout, the fact that initial flexible tariffs did not necessarily compare favourably with flat tariffs and a perceived waning interest in flexible pricing. These are: • benefits associated with the uptake of innovative tariffs and demand management ― which has achieved only 2.5 per cent of expected benefits to be realised by 2014 • benefits that come from network operational efficiencies ― which have achieved 49.32 per cent of expected benefits to be realised by 2014.

Benefits realisation by consumers is uncertain

Few of the benefits accrue directly to consumers, and they clearly rely on consumer action to take advantage of these services. For instance, consumers can take up flexible pricing offers that may result in savings on their electricity bills. Similarly, consumers may benefit directly if they move house and take advantage of the cost reduction in de-energising and re-energising power supply, arising from the ability of power companies to now do this remotely using smart meters. The majority of expected benefits for consumers from the AMI program are cost savings that accrue first to distributors and to retailers that must be passed on to consumers through a chain of action, including regulatory decisions and competitive action. However, the state cannot directly control these processes. As an example, consumers' reaction to flexible pricing — which provides higher electricity prices at peak times — is assumed to reduce overall peak electricity consumption. This is expected to reduce or defer distributors' need to upgrade electricity networks to meet demand, which results in cost savings for distributors. However, these cost - savings can only be realised by consumers if they are passed on to retailers through regulatory pricing decisions made by the AER. Retailers must then pass these savings on to consumers through competitive pressures. As such, the actual transfer of these types of benefits to consumers is unclear as these actions cannot be fully determined in advance.

Most of the cost savings achieved by distributors from smart meters are yet to flow through to retailers and on to customers. The AER is currently preparing for its next Victorian distribution pricing decision which will take effect from 1 January 2016.

This provides an opportunity for cost savings achieved by distributors to be passed on to retailers and then to customers. DEDJTR should be vigorously prosecuting this process with its own rigorous analysis of the distributors' ongoing costs to determine the benefits that should be flowing to retailers and to consumers.

The amount of expected benefits may no longer be valid

The amount of overall benefits from the AMI program as calculated in the 2011 CBA relied on many assumptions being met. For instance, the 2011 CBA estimated that $778 million of benefits associated with the uptake of flexible tariffs and demand management would be realised by consumers over the life of the p rogram to 2028. However, this figure is based on complex assumptions around the rate at which households will take up new pricing offers. These assumptions are not currently being met. By 2014, the 2011 CBA expected 4 per cent of consumers to have taken up flexible electricity price offers, however, only 0.27 per cent have done so. This is due to a slower than expected smart meter rollout, the moratorium on the introduction of flexible pricing, the fact that initial flexible tariffs did not necessarily compare favourably with flat tariffs and perceived waning interest in flexible pricing. At this rate, it is unclear whether the expected uptake of 15 per cent by 2017 will be achieved. Accelerating the uptake and benefits from flexible price offers relies on retailers providing better value - for - money options compared to the existing flat tariffs, and increasing consumer awareness of the availability and benefits of such offers.

The department is re-evaluating the expected benefits

DEDJTR now acknowledges that some key assumptions underpinning the expected benefits realisation as defined in the 2011 CBA may no longer be valid. It proposes to review these assumptions but remains committed to achieving the targets outlined in the 2011 CBA. This review is again likely to change the value of anticipated benefits through to the end of the program. We acknowledge that the nature and amount of benefits may change — especially as the technology is rolled out and market participants, policy makers and customers experience and better understand the potential of AMI over time. In this context, it is encouraging that DEDJTR will actively review the expected benefits. However, it is concerning that the fundamental assumptions underpinning the 2011 CBA, which were used to justify the continued rollout of smart meters, have become so uncertain as to require, yet again, a review of future targets for benefits realisation.

Program governance and risk management

DEDJTR has recognised its leadership role with respect to the AMI program and has put in place governance structures to strengthen its oversight and management of program risks. It has established clear accountabilities and responsibilities to enable it to better identify and manage risks, including establishing the AMI Program Steering Committee, Ministerial Advisory Council, and Program Management Office. DEDJTR has also developed a risk management plan to identify, evaluate and mitigate future risks, which is reviewed regularly by its Program Steering Committee. DEDJTR has taken action to address program issues. For example, it has provided distributors with an incentive to complete the rollout by requiring them to pay a rebate of $125 to customers at premises where: • the distributor had failed to attempt to install a smart meter by 30 June 2014 ―this rebate was payable by 31 October 2014 • the smart meter installed was not functioning as required by 31 March 2015 ―this rebate was payable by 30 June 2015. Six hundred and eighty households have received the first rebate as they do not yet have a smart meter installed, and approximately 90 per cent of eligible account holders received the tranche two rebates. DEDJTR has also been effective in influencing the AER in its scrutiny of distributors' metering costs that are recovered from customers through charges.

Consumer engagement and education

DEDJTR has demonstrated a strong focus on improving communications with consumers, including addressing consumer issues arising from the AMI program. Various evaluations of DEDJTR’s communications campaigns have found that they have increased consumer awareness, and consumer use of My Power Planner as a tool to find a better electricity plan and save money. However, despite the work to date, market research conducted in early 2014 found that two - thirds of Victorians did not understand what the benefits of smart meters were and many were still unaware of the link between their smart meter and saving money on their electricity bills. A very small number of Victorians still had a negative perception of smart meters due to misinformation and a lack of understanding. DEDJTR needs to improve its communications to further promote the active use of smart meters to inform household energy consumption, and to encourage the uptake of flexible pricing. Consumer action is a key determinant of any future benefits realisation.

Future developments impacting on smart meter benefits

The amount of benefits that are expected to be achieved by the AMI program may be impacted by the introduction of competitive metering and network tariff reform. National reforms to metering that are expected to be introduced from mid - 2017 could mean that smart meters installed under the AMI program may be replaced by other, competitively provided meters, under nationally agreed arrangements. DEDJTR has acknowledged that the removal of distributor exclusivity in Victoria is a risk to the realisation of the benefits of the AMI program. It may also expose consumers to increased costs. Network tariff reform, enabled by smart meters, is intended to create a fairer cost structure for consumers by removing cross - subsidies that exist in the current cost structure. However, the impact that network tariff reforms will have on different community groups is not yet well understood, and for some consumers network costs could increase. DEDJTR should focus on developing a customer engagement program to explain the reasons behind these reforms, but also to protect vulnerable consumers from potential adverse impacts. It should also engage with the AER to introduce metering competition in a way that maintains AMI benefits for Victorian consumers.

Future actions to enhance benefits realisation

Despite expecting significant consumer and other benefits when the AMI program commenced in February 2006, the state has few options to influence — and no ability to directly control — costs to consumers and drive many of the benefits. Nevertheless, DEDJTR has a responsibility to take an active role in implementing the AMI program to contain any further costs and adverse impacts and to maximise and accelerate the available benefits for consumers, who have paid for the rollout and connection of smart meters to date. The recommendations in this report highlight the key areas on which DEDJTR must focus its efforts so as to protect consumers and maximise their benefits realisation.

Public reporting

Reporting on the AMI program has been inadequate. While consumers pay for the costs of the smart meter rollout on the promise of future benefits, there is limited public reporting on the program in DEDJTR's annual report and in the Budget Papers. In particular, there is little clear and transparent knowledge of costs to consumers to date and no public reporting of either the costs or benefits of the program. What exists does not provide sufficient information for consumers to assess the program 's performance in terms of the costs incurred to date and whether benefits have been realised. This reduces transparency and accountability for this program.

The report offers the following  Recommendations

That the Department of Economic Development, Jobs, Transport & Resources:

1. develops Budget Paper measures that report performance against the objectives of the Advanced Metering Infrastructure program, and publicly reports annually on costs incurred and benefits achieved

2. improves its consumer education to focus on the opportunities to use smart meters to reduce energy consumption, and to take up flexible retail pricing offers, and use other tools, to reduce bills

3. works with distributors and retailers to identify and implement clear syst ems and processes for monitoring the changes in energy consumption and peak demand

4. works with distributors and retailers to develop and implement systems and processes to more effectively measure and track network benefits to enable these to be passed on to consumers

5. effectively influences the Australian Energy Regulator’s: • decisions related to the passing on of network efficiency benefits to consumers in the 2016 – 2020 distribution price review • annual process for assessing whether excess costs are efficient and prudent and should be passed on to consumers

6. works with relevant stakeholders to analyse the impact of network tariff reform on consumer groups, particularly vulnerable consumers

7. develops a strong and persistent cu stomer engagement program in relation to network tariff reform that: • enables consumers to make informed decisions to realise the potential benefits of more cost - reflective network tariffs and to assist in reducing the load on electricity infrastructure during peak periods • educates vulnerable sectors of society so that they can minimise any unfair disadvantage

8. identifies and implements actions to protect Victorian consumers from additional costs associated with the pending rollout of new competitive metering processes, and ensures that essential Advanced Metering Infrastructure program benefits are preserved

9. in conjunction with industry and the Essential Services Commission, considers options to improve the information available to consumers on electricity bills.

Smart Meters

From yesterday's Commonwealth Energy White Paper -

Price signals and advanced metering

Price signals need to be complemented by the consumer’s ability to understand and respond to those signals. A more cost-reflective tariff arrangement is one where prices are based on the cost to supply electricity at the time it is used, which requires advanced household electricity meters (smart meters or, at a minimum, interval meters that track usage over time). Effective and timely consumer access to their own data from these meters (either directly or through an authorised agent) is critical to enable a more sophisticated response to cost-reflective tariffs and help consumers select the best services for their needs. Access to a consumer’s consumption profile must be readily available (for example, online) and accessible, if authorised by the consumer, to service providers and third parties to support consumer decision-making.

Some stakeholders support a mandated rollout of advanced meters. Advanced meters allow consumers to gain the full benefits of demand-side measures, such as cost‑reflective tariffs and energy efficiency technologies, to manage their energy use. Other stakeholders assert that metering should be at a customer’s choice because some  customers will be unable to change their use patterns in response to information on their energy use from a meter and associated price signals from cost-reflective pricing. The Australian Government supports competitive and voluntary metering services, where the benefits exceed the costs, because they will drive the efficient rollout of advanced meters, based on the value they provide to consumers and market participants.

Case study: Smart meters

Smart meters offer more functions than are possible with traditional meters. A smart meter measures electricity use continuously and records consumption every half hour while a traditional meter only measures total energy consumption. A smart meter provides secure communication capabilities, can work with different household technologies such as online portals and in-home displays, and is required to support technologies that report information on particular appliances. Smart meters support the development of innovative products and services, such as load management, which can help consumers manage their bills. This is different to a traditional meter, which only measures the total consumption between any two points in time. Smart meters come in different types and models, feature digital displays in place of a dial, and are similar in size to a traditional meter.

The Australian Government supports a market-driven approach to demand response arrangements for large energy users that gives them options to effectively respond to cost-reflective price signals and manage their costs. The Government also supports greater competition and choice in how energy users can respond to high wholesale price signals.

Under a demand response mechanism, consumers participating in the wholesale market would be able to make the decision to continue consumption or reduce their consumption by a certain amount in response to high spot prices. They would be paid according to the amount of ‘demand response’ delivered to the market, which is calculated as the difference between their estimated ‘baseline consumption’ and their actual metered consumption for the demand response interval. While it would mainly assist large electricity users initially, in the future it could be adapted to demand responses from residential consumers who have the appropriate metering technology in place.

The Paper goes on to state (at p32) that -

Improved energy productivity will reduce household and business energy costs and encourage economic growth. Energy productivity aims to lower the ratio of energy costs to the value of output received from the use of that energy. Energy productivity can be improved through energy market reforms such as increased competition and cost-reflective pricing that are aimed at lowering costs as well as energy efficiency measures.

The productive use of energy can lower energy costs by improving both the output and benefit received per unit of energy consumed. The more productive use of energy can delay the need for new energy supply infrastructure, which in turn relieves the need for price increases to recover that investment.

Increasing Australia’s energy productivity relies on the energy market reforms outlined in Chapter 1, particularly those that increase choice in energy services. Increased competition and flexible tariff structures provide this choice. Choice needs to be complemented by equipping consumers with appropriate information and decision‑making tools to select the services that benefit them (for example, ensuring they select the best tariff to save them money, rather than one that might increase their bills). There are significant barriers to the timely access to and sharing of consumers’ own data, particularly in developing new systems to support smart meters. There is a role for Government to ensure energy consumers have access to the information and tools they need to make informed choices. Other barriers, such as split incentives (for example, in cases where building owners may be less motivated to make improvements than their tenants who pay for the energy consumed) will also need to be addressed.

Smart Meters

The NZ Privacy Commissioner has released a Case Note (No 251185, 2015) on Use of smart meters by utility companies.

The Note states in part -

All residential properties have meters which record total energy consumption at an address. Traditionally, these meters were analogue and needed to be manually checked each month by a meter reader.

Under the Electricity Industry Participation Code 2010, electricity companies must ensure existing metering equipment is recertified by 2015. Many companies are taking the opportunity to install advanced meters that collect data at frequent intervals and communicate that data directly to the electricity company.

We looked at the type of data being collected by advanced meters, whether this could identify users and, if so, what security safeguards were in place to protect that data.

‘Personal information’ in the Privacy Act is defined as information about an identifiable individual. It must tell the reader, or hearer, something about a particular person.

In its raw form, the data collected by advanced meters may not identify a particular person at all. The data collected in its raw form appears as a series of numbers like “20130542399”. No customer data is stored at the meter, ensuring that customers cannot be identified at the site.

Real time aggregate data is also useful to show when and where high and low demand for electricity, gas or water occur, and can assist in planning supply.

However, usage information collected from smart meters is personal information once it is associated with an account holder. This is particularly so if only one person lives at a residential address; any data collected from that address will also be about the resident/account holder. When more than one individual lives at an address the data is less likely to identify the power usage of one of those residents. However, it will be linked to the account holder. Power companies therefore will need to comply with the Privacy Act.

Once the raw data is translated to usage information, power companies need to ensure this information is appropriately stored and handled and access to the information is restricted to staff on a ‘need to know’ basis.

Advanced meters automate the collection process, and allow for the collection of more detailed information about electricity use. For example, it may show whether people are at home and may show when certain types of high energy appliances are used. We therefore consider that power companies need to take additional care in how they look after that information, and tell consumers how it will be used.

Even though power companies can collect more granular information about power usage, it doesn’t necessarily follow they can use that information for any purpose they choose. The Privacy Act still applies to personal information and the power companies should only be using the information for the purposes for which it was collected. Power companies should outline these purposes in their privacy policy.

They also need to have strong security standards to ensure information is transmitted safely online.

While the introduction of smart appliances and how this will interact with advanced metering technology is speculative at present, we believe that it has the potential to make the information from smart meters more valuable.

Internet of Things

The US Federal Trade Commission has released a staff report [PDF] on The Internet of Things - Privacy and Security in a Connected World.

 It states -

The Internet of Things (“IoT”) refers to the ability of everyday objects to connect to the Internet and to send and receive data. It includes, for example, Internet-connected cameras that allow you to post pictures online with a single click; home automation systems that turn on your front porch light when you leave work; and bracelets that share with your friends how far you have biked or run during the day. Six years ago, for the first time, the number of “things” connected to the Internet surpassed the number of people. Yet we are still at the beginning of this technology trend. Experts estimate that, as of this year, there will be 25 billion connected devices, and by 2020, 50 billion.

Given these developments, the FTC hosted a workshop on November 19, 2013 – titled The Internet of Things: Privacy and Security in a Connected World. This report summarizes the workshop and provides staff’s recommendations in this area. Consistent with the FTC’s mission to protect consumers in the commercial sphere and the focus of the workshop, our discussion is limited to IoT devices that are sold to or used by consumers. Accordingly, the report does not discuss devices sold in a business-to-business context, nor does it address broader machine-to- machine communications that enable businesses to track inventory, functionality, or efficiency.

Workshop participants discussed benefits and risks associated with the IoT. As to benefits, they provided numerous examples, many of which are already in use. In the health arena, connected medical devices can allow consumers with serious medical conditions to work with their physicians to manage their diseases. In the home, smart meters can enable energy providers to analyze consumer energy use, identify issues with home appliances, and enable consumers to be more energy-conscious. On the road, sensors on a car can notify drivers of dangerous road conditions, and software updates can occur wirelessly, obviating the need for consumers to visit the dealership. Participants generally agreed that the IoT will offer numerous other, and potentially revolutionary, benefits to consumers.

As to risks, participants noted that the IoT presents a variety of potential security risks that could be exploited to harm consumers by:

(1) enabling unauthorized access and misuse of personal information; 

(2) facilitating attacks on other systems; and 

(3) creating risks to personal safety.

Participants also noted that privacy risks may flow from the collection of personal information, habits, locations, and physical conditions over time. In particular, some panelists noted that companies might use this data to make credit, insurance, and employment decisions. Others noted that perceived risks to privacy and security, even if not realized, could undermine the consumer confidence necessary for the technologies to meet their full potential, and may result in less widespread adoption.

In addition, workshop participants debated how the long-standing Fair Information Practice Principles (“FIPPs”), which include such principles as notice, choice, access, accuracy, data minimization, security, and accountability, should apply to the IoT space. The main discussions at the workshop focused on four FIPPs in particular: security, data minimization, notice, and choice. Participants also discussed how use-based approaches could help protect consumer privacy.

1. Security

There appeared to be widespread agreement that companies developing IoT products should implement reasonable security. Of course, what constitutes reasonable security for a given device will depend on a number of factors, including the amount and sensitivity of data collected and the costs of remedying the security vulnerabilities. Commission staff encourages companies to consider adopting the best practices highlighted by workshop participants, including those described below.

First, companies should build security into their devices at the outset, rather than as an afterthought. As part of the security by design process, companies should consider:

(1) conducting a privacy or security risk assessment; 

(2) minimizing the data they collect and retain; and 

(3) testing their security measures before launching their products.

Second, with respect to personnel practices, companies should train all employees about good security, and ensure that security issues are addressed at the appropriate level of responsibility within the organization. 

Third, companies should retain service providers that are capable of maintaining reasonable security and provide reasonable oversight for these service providers. 

Fourth, when companies identify significant risks within their systems, they should implement a defense-in- depth approach, in which they consider implementing security measures at several levels. 

Fifth, companies should consider implementing reasonable access control measures to limit the ability of an unauthorized person to access a consumer’s device, data, or even the consumer’s network. 

Finally, companies should continue to monitor products throughout the life cycle and, to the extent feasible, patch known vulnerabilities.

2. Data Minimization

Data minimization refers to the concept that companies should limit the data they collect and retain, and dispose of it once they no longer need it. Although some participants expressed concern that requiring data minimization could curtail innovative uses of data, staff agrees with the participants who stated that companies should consider reasonably limiting their collection and retention of consumer data. Data minimization can help guard against two privacy-related risks. First, larger data stores present a more attractive target for data thieves, both outside and inside a company – and increases the potential harm to consumers from such an event. Second, if a company collects and retains large amounts of data, there is an increased risk that the data will be used in a way that departs from consumers’ reasonable expectations.

To minimize these risks, companies should examine their data practices and business needs and develop policies and practices that impose reasonable limits on the collection and retention of consumer data. However, recognizing the need to balance future, beneficial uses of data with privacy protection, staff’s recommendation on data minimization is a flexible one that gives companies many options. They can decide not to collect data at all; collect only the fields of data necessary to the product or service being offered; collect data that is less sensitive; or de-identify the data they collect. If a company determines that none of these options will fulfill its business goals, it can seek consumers’ consent for collecting additional, unexpected categories of data, as explained below.

3. Notice and Choice

The Commission staff believes that consumer choice continues to play an important role in the IoT. Some participants suggested that offering notice and choice is challenging in the IoT because of the ubiquity of data collection and the practical obstacles to providing information without a user interface. However, staff believes that providing notice and choice remains important.

This does not mean that every data collection requires choice. The Commission has recognized that providing choices for every instance of data collection is not necessary to protect privacy. In its 2012 Privacy Report, which set forth recommended best practices, the Commission stated that companies should not be compelled to provide choice before collecting and using consumer data for practices that are consistent with the context of a transaction or the company’s relationship with the consumer. Indeed, because these data uses are generally consistent with consumers’ reasonable expectations, the cost to consumers and businesses of providing notice and choice likely outweighs the benefits. This principle applies equally to the Internet of Things.

Staff acknowledges the practical difficulty of providing choice when there is no consumer interface and recognizes that there is no one-size-fits-all approach. Some options include developing video tutorials, affixing QR codes on devices, and providing choices at point of sale, within set-up wizards, or in a privacy dashboard. Whatever approach a company decides to take, the privacy choices it offers should be clear and prominent, and not buried within lengthy documents. In addition, companies may want to consider using a combination of approaches. Some participants expressed concern that even if companies provide consumers with choices only in those instances where the collection or use is inconsistent with context, such an approach could restrict unexpected new uses of data with potential societal benefits. These participants urged that use limitations be considered as a supplement to, or in lieu of, notice and choice. With a use-based approach, legislators, regulators, self-regulatory bodies, or individual companies would set “permissible” and “impermissible” uses of certain consumer data.

Recognizing concerns that a notice and choice approach could restrict beneficial new uses of data, staff has incorporated certain elements of the use-based model into its approach. For instance, the idea of choices being keyed to context takes into account how the data will be used: if a use is consistent with the context of the interaction – in other words, it is an expected use – then a company need not offer a choice to the consumer. For uses that would be inconsistent with the context of the interaction (i.e., unexpected), companies should offer clear and conspicuous choices. In addition, if a company collects a consumer’s data and de-identifies that data immediately and effectively, it need not offer choices to consumers about this collection. Furthermore, the Commission protects privacy through a use-based approach, in some instances. For example, it enforces the Fair Credit Reporting Act, which restricts the permissible uses of consumer credit report information under certain circumstances. The Commission also applies its unfairness authority to challenge certain harmful uses of consumer data.

Staff has concerns, however, about adopting a pure use-based model for the Internet of Things. First, because use-based limitations are not comprehensively articulated in legislation, rules, or widely-adopted codes of conduct, it is unclear who would decide which additional uses are beneficial or harmful. Second, use limitations alone do not address the privacy and security risks created by expansive data collection and retention. Finally, a pure use-based model would not take into account consumer concerns about the collection of sensitive information. The establishment of legislative or widely-accepted multistakeholder frameworks could potentially address some of these concerns. For example, a framework could set forth permitted or prohibited uses. In the absence of consensus on such frameworks, however, the approach set forth here – giving consumers information and choices about their data – continues to be the most viable one for the IoT in the foreseeable future.

4. Legislation

Participants also discussed whether legislation over the IoT is appropriate, with some participants supporting legislation, and others opposing it. Commission staff agrees with those commenters who stated that there is great potential for innovation in this area, and that IoT-specific legislation at this stage would be premature. Staff also agrees that development of self-regulatory programs designed for particular industries would be helpful as a means to encourage the adoption of privacy- and security-sensitive practices.

However, in light of the ongoing threats to data security and the risk that emerging IoT technologies might amplify these threats, staff reiterates the Commission’s previous recommendation for Congress to enact strong, flexible, and technology-neutral federal legislation to strengthen its existing data security enforcement tools and to provide notification to consumers when there is a security breach. General data security legislation should protect against unauthorized access to both personal information and device functionality itself. For example, if a pacemaker is not properly secured, the concern is not merely that health information could be compromised, but also that a person wearing it could be seriously harmed.

In addition, the pervasiveness of information collection and use that the IoT makes possible reinforces the need for baseline privacy standards, which the Commission previously recommended in its 2012 privacy report. Although the Commission currently has authority to take action against some IoT-related practices, it cannot mandate certain basic privacy protections – such as privacy disclosures or consumer choice – absent a specific showing of deception or unfairness. Commission staff thus again recommends that Congress enact broad- based (as opposed to IoT-specific) privacy legislation. Such legislation should be flexible and technology-neutral, while also providing clear rules of the road for companies about such issues as how to provide choices to consumers about data collection and use practices.

In the meantime, we will continue to use our existing tools to ensure that IoT companies continue to consider security and privacy issues as they develop new devices. Specifically, we will engage in the following initiatives:

• Law enforcement: The Commission enforces the FTC Act, the FCRA, the health breach notification provisions of the HI-TECH Act, the Children’s Online Privacy Protection Act, and other laws that might apply to the IoT. Where appropriate, staff will recommend that the Commission use its authority to take action against any actors it has reason to believe are in violation of these laws. 

• Consumer and business education: The Commission staff will develop new consumer and business education materials in this area. 

• Participation in multi-stakeholder groups: Currently, Commission staff is participating in multi-stakeholder groups that are considering guidelines related to the Internet of Things, including on facial recognition and smart meters. Even in the absence of legislation, these efforts can result in best practices for companies developing connected devices, which can significantly benefit consumers. 

• Advocacy: Finally, where appropriate, the Commission staff will look for advocacy opportunities with other agencies, state legislatures, and courts to promote protections in this area.

Privacy By Design

‘Privacy by Design’: Nice-to-Have or a Necessary Principle of Data Protection Law?' by David Krebs in (2013) 4(1) Journal of Intellectual Property, Information Technology and Electronic Commerce Law comments

'Privacy by Design' is a term that was coined in 1997 by the Canadian privacy expert and Commissioner for Ontario, Dr Ann Cavoukian, but one that has recently been receiving more attention in terms of its inclusion as a positive requirement into EU, US and Canadian data protection frameworks. This paper argues that the right to personal privacy is a fundamental right that deserves utmost protection by society and law. Taking privacy into consideration at the design stage of a system may today be an implicit requirement of Canadian federal and EU legislation, but any such mention is not sufficiently concrete to protect privacy rights with respect to contemporary technology. Effective privacy legislation ought to include an explicit privacy-by-design requirement, including mandating specific technological requirements for those technologies that have the most privacy-intrusive potential. This paper discusses three such applications and how privacy considerations were applied at the design stages. The recent proposal to amend the EU data protection framework includes an explicit privacy-by- design requirement and presents a viable benchmark that Canadian lawmakers would be well-advised to take into consideration.

Krebs states

The threats to the individual right to privacy – or what is sometimes referred to as the right to ‘informational self-determination’ or simply the ‘right to be let alone’ – are currently being widely discussed, debated and analysed. This is particularly so where this right is impacted by new technologies or the incremental move of our daily activities online. New technologies that impact the way in which information about people,(‘PII’), is used, collected, stored and disseminated are appearing at a frequent and rapid pace. These may be ‘apps’, facial recognition technologies, smart electricity grids, Radio Frequency Technologies (RFID), cloud computing, mass and surreptitious surveillance, biometrics and private sector Internet marketing initiatives. Currently, for the most part at least, technology is being adjusted after the fact to patch privacy-related issues as they arise or after they have already had a negative impact.

To address these concerns and to move from a reactive to a proactive approach, Dr Ann Cavoukian, current Privacy Commissioner for Ontario, in 1997 had already developed the principles behind – and coined the phrase – ‘privacy by design’ (PbD). PbD recognizes that the deployment of technologies designed to achieve a certain commercial or public sector goal without having considered the privacy implications at the design stage of the technology being used or disclosed in ways that harm privacy rights permanently. PbD embodies the merger of two objectives: the protection and control of PII and privacy, and the advancement of the commercial application of technologies in a sustainable but competitive manner. The Protection of Information and Electronics Documents Act (‘PIPEDA’) (as well as the European Data Protection Directive) contains provisions relating to the adequacy of protective security measures and also, implicitly, privacy ‘by design’ requirements. At present, however, PbD is not an explicit part of the legislative scheme in Canada, the European Union (EU) or the United States of America (US), even though it is often cited as a best practice and perhaps even as the ‘gold standard’ in privacy protection.

Calls for an introduction of PbD into legislative frameworks have been receiving more attention recently, for example, within the proposal for an EU privacy framework, in proposed legislation in the US, as well as a resolution at the 32nd International Conference of Data Protection and Privacy Commissioners in Jerusalem. In Canada, there have been no such concrete proposals, only the vocal views of the Federal and Ontario Commissioners.

This paper argues that legislated PbD is the necessary next step in privacy law to protect a right that is fundamental to liberty, personal integrity and democracy. For this reason, PbD deserves explicit mention as a tenet of privacy and data protection law. However, the view that laws based on PbD principles alone would be sufficient in this regard is not tenable in a world of ubiquitous computing and transformative technologies in this regard is not tenable in a world of ubiquitous computing and transformative technologies. A broad, principled approach relies on organizations adopting appropriate measures without providing the necessary guidance necessary to prevent actions injurious to personal privacy such as data breaches, unwanted tracking or uncontrolled collection of ever-increasing amounts of PII. PbD needs to be incorporated into the privacy law framework in Canada (and elsewhere) as a general organizational requirement and, in appropriate circumstances, mandate specific technological solutions, such as ‘privacy enhancing technologies’ PETs), as well as the corresponding ability for the regulator to prevent a system or application from being initiated.

The first part of this paper will briefly describe the legal right to privacy in order to set the stage for why the design of systems that conform to this right is of such primal importance to its ultimate protection. The second part will turn to the current legislative framework to canvass the extent to which current provisions would satisfy the needs intended to be addressed by PbD. In this section, I will include examples from the EU framework because of its relevance to Canadian privacy laws. Canadian policy discussions often run in parallel and Canada and Europe share many relevant socio-cultural aspects. I will also be looking to the US, where there have been some significant developments in this regard. The third part will look at pertinent examples of systems to which PbD principles were applied, and without which the resulting systems would likely have been much more privacy-intrusive. The last part of the analysis will focus on the views of data protection authorities relating to incorporating PbD into legislative frameworks, including a close look at the legislative proposal from the Ontario Commissioner, Dr Ann Cavoukian, which was included as part of a very recent publication [in fact 2011] from her office. The final part of this article will make some recommendations and suggested points for future research in this regard.

'Privacy in the Post-NSA Era: Time for a Fundamental Revision?' by Bart van der Sloot in (2014) 5(1) Journal of Intellectual Property, Information Technology and Electronic Commerce Law comments 

Big Brother Watch and others have filed a complaint against the United Kingdom under the European Convention on Human Rights about a violation of Article 8, the right to privacy. It regards the NSA affair and UK-based surveillance activities operated by secret services. The question is whether it will be declared admissible and, if so, whether the European Court of Human Rights will find a violation. This article discusses three possible challenges for these types of complaints and analyses whether the current privacy paradigm is still adequate in view of the development known as Big Data.

Van der Sloot argues

The data collection by the NSA and other secret service organizations is part of a broader trend also known as Big Data, in which large amounts of personal data are being collected by means of cameras, telephone taps, GPS systems and Internet monitoring, stored in large databases and analysed by computer algorithms. These data are then aggregated, used to create group profiles and analysed on the basis of statistical relationships and mathematical patterns. Subsequently, the profiles are used to individualize persons that meet a certain pattern or group profile. This technique, called profiling, is used for a growing number of purposes, such as in the fight against terrorism, in which a person may be monitored or followed when he (in whole or in part) meets a certain profile (for example, male, Muslim, Arab origin and frequent trips to Yemen). Similarly, banks and insurance companies rely on risk profiles of customers to take certain decisions, and Internet companies like Google and Facebook use such profiles for advertising purposes. For example, if a person fits the profile “man, university degree, living in London”, he might get an advertisement for the latest Umberto Eco book or for an apartment in one of the richer suburbs.

In such processes, there is basically no demarcation in person, time and space, as simply everyone could be subjected to them. Data collection and processing do not start after a particular ground or reason has arisen, but the value and use of the information will only become apparent at a later stage. The gathered data are often meta-data – regarding the length of and participants to a telephone call, for example – but this often does not regard the content of the communication. Meta-data can be compared to the information visible on an envelope in the ordinary mail, such as the addressee, the size and the weight and possibly the sender. These data traditionally do not fall within the realm of privacy and the secrecy of communication. Still, through the use of modern techniques, these data can be used to generate increasingly detailed profiles.  Thus although they are not privacy-sensitive data initially, they may become identifying data at a later stage. In addition, the collected data are not linked directly to one person, but they are used to generate general group profiles and statistical correlations. These profiles may be applied to an individual if he meets one or several of the elements contained in the group profile. Finally, in these processes, no reasonable suspicion is needed to individualize someone. Even a 1% chance that someone will buy an expensive luxury product or will engage in terrorist activities may provide sufficient grounds to do so. Consequently, the individual element and the interests of specific persons are moved to the background in such systems.

Although it is clear that European citizens cannot challenge the activities of the US National Security Agency (NSA) as unveiled by Edward Snowden, Big Brother Watch and others have filed a complaint against the United Kingdom for similar practices by its secret services under the European Convention on Human Rights (ECHR),  specifically Article 8, which holds as follows:

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In a reaction, the European Court for Human Rights has asked the parties to respond to three questions:

(1) Can the applicants claim to be victims of a violation of their rights under Article 8 ECHR?

(2) Have the applicants done all that is required of them to exhaust domestic remedies?

(3) If so, are the acts of the United Kingdom intelligence services in relation to the collection and processing of data in accordance with the law and necessary in a democratic society?

This article will try to answer questions (1) and (3) by assessing three general points. Does the complaint fall under the scope of Article 8 ECHR ratione personae, meaning have the applicants suffered from any personal damage? Does the complaint fall under the scope of Article 8 ECHR ratione materiae, meaning do the practices complained of constitute an infringement with the right to privacy? And if so, what would the likely outcome be in relation to whether the infringement was necessary in a democratic society; that is, how will the Court balance the right to privacy with the need for security? Not discussed are the questions related to the exhaustion of domestic remedies and to the matter of whether the governmental practices are “in accordance with the law”.

Although this complaint functions as the central theme, the findings will be extrapolated to the current development of Big Data. The general conclusion will be that, currently, the right to privacy is based on the individual and his interests in a threefold manner: (1) It provides the individual with a right to submit a complaint about a violation of his privacy. (2) It provides him with protection of his personal interests, related to human dignity and personal autonomy. (3) In concrete circumstances, a privacy infringement will be judged on its legitimacy by balancing the individual with the societal interest, for example related to security.

Subsequently, it will be argued that the new developments of Big Data, of which the NSA affair is a shining example, bring the following results: (1) it is increasingly difficult to demonstrate personal damage and to claim an individual right, (2) the value at stake in this type of process is a societal rather than an individual one and (3) the balance of different interests no longer provides an adequate test to determine the outcome of cases. Finally, some modest alterations of the current paradigm will be proposed.

Smart Meters, Dumb Headlines

Elsewhere - more in sorrow than in anger (of course) - I've critiqued claims about the inevitable and imminent supremacy of broadband over powerline (BPL), aka powerline communication (PLC), as a mechanism for providing broadband to rural/urban consumers using plain old powerlines ... in other words the 'grid' that connects businesses, households and other entities to the power stations.

Those claims have on occasion been driven by commercial opportunism (nothing like good news to pump up a flaccid share price or buff a stodgy corporate profile), incomprehension or indifference on the part of the mass media and the tendency of 'citizen journalists' to drink the digital koolade. The reality is - and will remain - that although broadband (however defined) can be delivered via the conventional electricity grid, such delivery is fraught with difficulty and is not commercially competitive once steps are taken to deal with radio interference and other problems. (I've noted that is also possible to deliver the net via carrier pigeon or bongo drum ... both mechanisms are technically feasible but, how very strange, have not supplanted wireless, fibre or conventional copper.)

I can thus empathise with the following response to reports that a 'smart meter' trial in Liverpool (UK) will lead to householders enjoying broadband over the grid -

Will this minion of the undead ever get a stake in its heart. Please ... silver bullets, garlic, wooden stakes, holy water something! anything!!!

Small scale Australian trials, under the auspices of ACMA, of BPL have gone nowhere - typically distinguished by deliriously upbeat media releases (and equally uncritical reporting) followed by an embarrassing silence as implementation does not eventuate. Across the world BPL solution vendors have packed their kit and slunk away; urban and rural showpiece projects have fizzled (eg here).

BPL continues to be "the technology of the future ... and always will be" - bright forecasts, dim reality.

Bye bye BPL?

Gloating, like tapdancing on an enemy's face, is 'not a good look' but I confess to a moment of satisfaction on hearing that the Manassas (Virginia) broadband over powerline [aka BPL] project has been abandoned.

BPL has been recurrently touted as a low cost mechanism for delivering broadband connectivity to households via standard urban and rural power networks, ie the wires that provide the juice for your domestic, industrial or office lights, printers, dishwashers, televisions, hotwater systems, airconditioners and other devices. the expectation has been that rather than digging up roads to lay fibre optic cable or festooning trees and powerpoles with more copper wire, ading a few tweaks to the existing power reticulation system would give everyone cheap reliable connectivity.

Some of the promoters of that vision were simply naive. Others, more sadly, were unscrupulous, with disingenuous media releases for example appearing when it was time to boost an ailing share price, to give a bit of sizzle to a tired corporate image or buff the authority of a telco regulator. The breathlessness of coverage by some online/offline publications reflected badly on their credibility, as did dismissal by enthusiasts of people who questioned aspects of BPL deployment or noted lacunae in corporate media releases. BPL for many people was a matter of true believers (undeterred by mundane realities of commercial viability) and of projects that were announced with a bang but abandoned in the dead of nighte.

In a past life I was one of the skeptics, noting that although BPL was technically feasible it was not commercially competitive, that it appeared unlikely to become competitive and that there were questions about how the technology was being promoted.

In essence, it is indeed possible to use a standard power grid to deliver connectivity to/from homes. It is necessary to modify the grid to 'inject' the signal and - as importantly - to reduce radiofrequency interference. That modification, and its ongoing maintenance (some equipment does not appear to have been particularly robust and for example has been recurrently fritzed by lightning strikes), was expensive. Those installation and maintenance costs meant that BPL did not stack up well against traditional cable, wireless, satellite, fibre or other connectivity. (In one of my more waspish moments I noted that it is possible to use bongo drums or pigeons as mechanisms for internet connectivity but that those mechanisms are not commercially competitive ... and not just because hawks acquire a taste for pigeon on the fly!)

In the US the Federal Communications Commission (FCC), the national equivalent of Australia's ACMA, gained attention for promoting BPL as the "great broadband hope", ignoring cogent criticisms from some economists, engineers and a range of users of radio spectrum (including defence agencies and police and fire services). BPL, it was claimed, would solve the lack of competition in the broadband sector, a vision reflected in puffery by some utility executives and publicists who painted rosy pictures of benevolent power companies endearing themselves to rural/urban customers by supplying phone, power and internet services without having to raise power charges. What's not to love?

It was thus unsurprising to see a succession of announcements that 'this year' was at last going to be 'the year' that BPL would take over and that the skeptics would be definitively proved wrong. In reality no-one was able to get the figures to work out the right way, ongoing vendor support was uncertain, investors weren't fully persuaded to drink the BPL koolade, trials (some Australian exercises are noted here) produced disappointing results and alternative delivery mechanisms gained market share.

In 2008 network operator/technology vendor COMTek exited from the model urban BPL network in Manassa, selling the facility to the city and thereafter concentrating on 'smart monitoring' systems. Manassas, after experiencing losses of around US$166,000 per year, has now pulled the plug. The network encompassed around 520 subscribers, hardly a major number. Its demise follows the abandonment of smaller trials in other parts of the US. BPL to the household remains a curiosity and an example of why we should be sceptical about some of the more upbeat predictions of a glorious low cost broadband future.