Copyright Law

The Borings Are Back! Lawsuit Against Google Revived on Trespassing Theory

By David OBrien

Of all the crazy things I've seen on the Street View feature of Google Maps, including house fires, medieval sword fights, supposed crimes in progress, people being pulled over (including the occasional Google vehicle speeding violation), I can't say that Aaron and Christine Boring's Pennsylvanian home rates high on my list of interesting vistas.

Nonetheless, I've seen it on multiple websites recently. Actually, I can thank the Borings for my newfound interest in suburban Pennsylvanian architecture and sudden desire to go swimming. See, when the Borings discovered that street-level photographs of their home, backyard, and swimming pool were available online through Street View, they sued Google. I recall seeing the Borings' home back when the case was dismissed in February 2009. Now it's back in the news again, after the Third Circuit revived one out of the five original claims by partially reversing the dismissal.

The original complaint (available at the Smoking Gun), filed in April 2008, alleged that Google committed invasion of privacy and trespass, among a smattering of other torts, when a Street View vehicle drove onto the Boring's private driveway without permission and captured the images for Google Maps. The only claim left after the Third Circuit's decision is the trespass claim.

For a moment, imagine a person is captured on a Google Street View camera while walking on public property. If that person decides to sue Google for invasion of privacy, he or she's got a difficult case ahead because individuals generally lack a legitimate expectation of privacy in their presence in publicly visible locations. In the Borings' case, which took place on private property, the invasion of privacy claim failed at both the district and appellate court levels for two reasons: (1) there were no people visible in the images, and (2) a photograph of the outside of a residential structure wouldn't, in the courts' view, upset a person of ordinary sensibilities, even if it was taken from private property.

In the February 2009 dismissal, the district court treated the invasion of privacy claim as two separate claims?intrusion on seclusion and publication of private facts. Like other states, in Pennsylvania, both of these torts can be a difficult to establish because, among other things, a plaintiff needs to show she suffered "mental suffering, shame, or humiliation" that a person of ordinary sensibilities would have suffered in the same instance. Even assuming the facts were exactly as the Borings alleged, the district court found both invasion of privacy claims factually insufficient, noting in particular:

While it is easy to imagine that many whose property appears on Google's virtual maps resent the privacy implications, it is hard to believe that any? other than the most exquisitely sensitive?would suffer shame or humiliation. The plaintiffs have not alleged facts to convince the Court otherwise.

Slip op., at 4. The Third Circuit largely agreed with the district court's analysis and affirmed that "[n]o person of ordinary sensibilities would be shamed, humiliated, or have suffered mentally as a result of a vehicle entering into his or her ungated driveway and photographing the view from there." The panel also pointed out that the Google vehicle only photographed structures and no persons were visible from inside the home, making the photography less intrusive.

On the other hand, the Third Circuit reversed dismissal of the Borings' trespass claim. The district court originally dismissed this portion of the complaint because the Borings did not "allege any facts sufficient to establish they suffered any damages by the alleged trespass." This is a bit more of a procedural goof than a bad legal claim because trespass is an intentional tort and damages are not a required element of the claim, meaning that nominal damages are available regardless of actual harm caused to the property trespassed upon. On this note, the Third Circuit quipped "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, but that is for another day."

The revival of the trespass claim may be a welcome result for the Borings, but it's not a serious problem for Street View. As long as Google takes footage from pubic streets, rather than entering onto private property, trespass will provide no help for future disgruntled homeowners. 

Combine a popular feature like Street View, which has a plethora of devoted websites and blog posts documenting some of the much odder things visible on camera, a seemingly quiet Pennsylvania couple's plain house, and a surname that might make an eight-year-old (like me) giggle when used in a sentence with "intrusion on seclusion," and you've got a recipe for the Streisand Effect. The Borings presumably filed this suit to stop unwanted publicity of their property; instead, I'm staring at the picture they wanted to get rid of for the fifth time this week.

Interested in an option to get that picture of you commuting to work in a shiny new tin foil hat off Street View? Ask Google. Others have had success using this less flashy method, including the Borings before the suit was filed.

(David O'Brien is an attorney and former CMLP Legal Intern. David received his J.D. from Northeastern University School of Law in 2009.)

Full post as published by Citizen Media Law Project on February 08, 2010 (boomark / email).