Last month, we presented to the DER Task Force about data accessibility, Smart Meters v2.0 and anti-trust issues involving utilities. The first question from the audience was about who owns energy data: You or the utility? We’ve been pondering this question ever since. Recently, we happened upon some remarkable insights about ownership from an unusual place: the 99% Invisible podcast by Roman Mars.
99% Invisible is a podcast about design. Originally focused on architecture, it has expanded into all areas of human fabrication, including signatures, license plates, time zones. The June 29, 2021 episode -- entitled “Mine!” -- addresses “ownership design,” providing numerous nail-on-the-head insights about the conflict surrounding who owns your energy data.
“Mine!” starts with the premise that ownership rules of various products aren’t derived from natural law; they are constructed. To understand the malleability of ownership, consider the example of who owns the fish in the ocean. In Iceland, fishermen believed the fish were theirs if they caught it first. But when the government imposed a limit on the annual catch to prevent overfishing, the result was harrowing: fishermen would go out in dangerous conditions -- think of Discovery Channel’s Deadliest Catch -- because failure to catch it first could mean loss of revenue once the limit was reached. This “derby” ownership design resulted in scores of deaths on the high seas. Iceland then changed the ownership scheme by doling out permits to individual boats over an entire season, rather than setting an overall quota. By modifying the catch ownership structure, fishermen didn’t have to take risks in poor weather, and fatalities dropped to zero. Many other countries have since adopted a similar model.
Not only is ownership malleable, but in some cases it is ambiguous. On an airplane, when the passenger in front of you reclines his seat, is he infringing on the space in front of you that you “own” for the duration of the flight? Or did your airfare never include that space at all? Columbia Law School professor Michael Heller refers to this as “strategic ambiguity”: “Ownership is ambiguous way more often than people realize — whose legroom space is that? Is it mine? Is it yours? We don’t know. That is one of the most powerful advanced tools of ownership design: being ambiguous deliberately in order to profit from the ambiguity,” Heller says.
With energy usage and cost data, utilities are like the airlines: They want to have it both ways. On one hand, utilities acknowledge that customers should be able to access their own data. That sounds simple enough. But don’t start thinking that you own your energy data because many utilities want to maintain control over how you use that data by erecting contractual restrictions on third party access. For example, the New York utilities sought to prohibit third parties from making “derivations” of energy data -- a vaguely defined prohibition that would, in effect, put all analysis of energy savings opportunities in violation of an agreement with the utilities. If ownership is a basket of rights, utilities want to dole out a handful of those rights here and there while keeping the rest of the basket for themselves.
A prime example of a utility reclining its “seat” into your airspace is San Diego Gas & Electric. In 2009, SDG&E announced a partnership with Google’s PowerMeter, which promised to incorporate detailed energy usage information from smart meters into various Google software tools. “This is about choice, control and convenience for our customers,” said SDG&E’s vice president of customer solutions at the time. “[Customers] have told us they prefer a variety of ways to receive this information to make it as easy as possible. Google is the first company to team with us in this effort, and we expect others will follow suit.”
But there would be no other companies, because SDG&E’s effort to partner with an outside party was merely a gesture -- one that was subsequently withdrawn. A few years later, with the Google partnership cancelled, SDG&E was claiming that SDG&E owns all underlying customer data they collect. SDG&E intended to recline its seat into your bubble after all.
In a similar fashion, SDG&E advertises its Green Button functionality so that consumers can have their data analyzed for efficiency opportunities. But many attempts by efficiency providers to actually use this capability have been stifled, with some waiting over two (2) years for SDG&E to enable their access. On paper, consumers have full control over their data -- it’s just that the wheels come off when they try to do anything with it.
Another example is Xcel Energy. Xcel’s Colorado utility was granted $612 million to install smart meters, justified in part because the data generated by smart meters would “empower” consumers to make better choices about their consumption patterns -- including sharing that information with energy management firms or devices. At the same time, Xcel declared that they own all customer energy data, creating an obvious conflict.
“Ownership is just a storytelling battle. It’s just my story of first versus your story of labor or my story of possession versus your story of attachment. That is all ownership is, isn’t it? It’s those competing stories,” says Heller. The brilliance of 99% Invisible’s episode is not that ambiguity of ownership is a shortcoming; it’s that ownership can be left intentionally ambiguous as part of a cunning business strategy. With utilities, the solution is for regulators to keep the lines on the playing field clear, all tray tables up and seats in their upright position. Utilities may experience some temporary discomfort, but fully recognizing the ownership rights of consumers is critical to an unconflicted coexistence with utilities -- both in the air and on the ground.