February 01, 2010
Google Street View Lawsuit Revived, But Only on Trespass Grounds--Boring v. Google
By Eric Goldman
Boring v. Google Inc., 2010 WL 318281 (3rd Cir. Jan. 28, 2010).
You may recall the book project A Day in the Life of America [Amazon affiliates link], which published what 200 photojournalists saw on May 2, 1986. The book provided a great snapshot of Americana, both sensational and banal. As a dataset, Google's Street View reminds me a lot of that book. The Google camera cars automatically capture whatever they see, which in some cases can lead to unintentionally amusing results. See, for example, this list of 20 crimes captured on Google Street View and the Huffington Post's list of "Craziest Google Street View Shots OF ALL TIME."
Inevitably, some people are going to be unhappy with whatever Google's camera cars indiscriminately captured and published. The plaintiffs in this case, Aaron and Christine Boring, are Pennsylvania homeowners with a reclusive streak. The Google camera car drove down the Borings' private driveway (allegedly ignoring the Borings' signage), took pictures of their house and published the photos through Google Street View.
The Borings were not satisfied with exercising Google's opt-out mechanism and instead made a federal case out of Google's transgressions. However, the district court was not impressed and kicked the Borings out of court.
The Borings appealed to the Third Circuit, which rewarded them with a small window of opportunity. The district court had rejected the Borings' trespass claims because they had not adequately alleged damage from the trespass. The appellate court reversed this point, saying a real property owner does not need to allege damage in order to state a valid trespass claim. As the court says, "Here, the Borings have alleged that Google entered upon their property without permission. If proven, that is a trespass, pure and simple." I'm not a real property expert, but this sounds right to me. The district court cited an 1899 case in support of its ruling, but the appellate court said that precedent was inapplicable.
Thus, the trespass claim survives a 12(b)(6) motion to dismiss, and the case gets sent back to the district court. While the appellate court expressly didn't tell the judge what to do, it's pretty clear that the appellate court doubts that the Borings will be able to assert any cognizable damage. As the court says, "it may well be that, when it comes to proving damages from the alleged trespass, the Borings are left to collect one dollar and whatever sense of vindication that may bring." My guess is that's the best possible outcome for the Borings.
In my opinion, the court's rejection of the Borings' privacy claims is the more interesting cyberlaw development. The court sensibly concludes that any violation suffered by the Borings would not highly offend a reasonable person. In other words, the Borings overreacted in a way the law does not recognize.
Given that the Borings weren't depicted in the photos, the court's ruling suggests that publishing online photos of private property categorically can't qualify as a privacy violation, whether the photos are taken on public or private property. The court's ruling, however, leaves open the possibility that depicting people in the photos might still be actionable--a question not before the court.
While the case has been revived, it's entirely clear to me that the Borings will not find much success on remand. Nevertheless, to save the litigation costs, Google ought to write a small check to settle the case, and the Borings would be prudent to take it rather than wait for the inevitable judicial denouement. To avoid further unwanted intrusions, they should use their settlement money to buy a gate for their driveway.
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