Google insists it has the right to drive upon a private road, turn around in a private driveway, and take pictures of private property.

Thomas Claburn, Editor at Large, Enterprise Mobility

May 30, 2008

4 Min Read

Google insists it has the right to drive upon a private road, turn around in a private driveway, and take pictures of private property.

In a motion to dismiss an invasion-of-privacy lawsuit filed by Aaron and Christine Boring in Pennsylvania, attorneys representing Google argue that what the plaintiffs claim is private is not private in the eyes of the law.

The case arose from Google's image-acquisition efforts for Google Maps Street View. A Google driver allegedly traveled down a private road, took pictures of the Boring residence, and turned around in the couple's driveway. Google then made those pictures available online through Google Maps Street View.

That act, the Borings allege, caused them mental suffering and diminished property value.

In Google's memorandum in support of its motion to dismiss, "mental suffering" appears in quotes, an evident attempt to suggest the absurdity of the anguish allegedly arising from Google's images. It also points out the irony of seeking damages for invasion of privacy when doing so would only bring more publicity, a position that seems rather broadly derisive of any attempt to address alleged privacy violations through public process.

"Plaintiffs have drawn the public eye upon themselves and the view of their home they claim is private," the memorandum states. "Plaintiffs did not seek to file their Complaint under seal, they unnecessarily included their street address in the Complaint, and they did not ask Google to remove the images of their property before they filed suit."

The Borings, the legal memorandum explains, "live in a residential community in the twenty-first century United States, where every step upon private property is not deemed by law to be an actionable trespass."

Because it is customary for people to "drive on our driveways and approach our homes," Google's attorneys argue, these intrusions and customary and expected. "Thus, unless there is a clear expression such as a gate, fence, or 'keep out' sign," anyone can approach without liability for trespass. "Plaintiff's allegation of a 'private road' sign at the top of their street standing alone is insufficient to negate Google's privileged and trivial entry upon Plaintiff's property."

While Google's attorneys may be correct in their assessment of the law, their hard line on privacy contrasts with statements made by Google's managers. "Google lives and dies on protecting users' privacy," Joe Kraus, director of product management at Google, said recently in response to Facebook's claim that Google's Friend Connect violated the social network's Terms of Service.

In a recent blog post, Saul Hansell of The New York Times suggested that Google's decision not to include a link to its privacy policy on its home page represented a violation of California privacy law. Google disagrees, but according to Hansell, Chris Hoofnagle, a senior fellow with the Berkeley Center for Law & Technology, believes "Google is in violation."

And perhaps that isn't surprising given the disagreement between the restrictive view of privacy that Google presents in court and the expansive view of privacy that Google claims in public statements.

"Today's satellite-image technology means that even in today's desert, complete privacy does not exist," Google's court filing says. "In any event, Plaintiffs live far from the desert and are far from hermits. Although they live on a privately maintained road, the road is shared by several neighbors and there is nothing around their home intended to prevent the occasional entry by a stranger onto their driveway. There is no gate, no 'keep out' sign, nor guard dog standing watch. There is no fence surrounding their property, nor is it located where the yard cannot be seen by satellite or low-flying aircraft. ... The view of which the Plaintiffs complain simply is not private."

Lillie Coney, associate director with the Electronic Privacy Information Center, suggests that Google is not so much concerned with privacy as it is with making sure it can monetize data without hindrance. "It has more to do for the economy that these companies are trying to build for themselves than it had anything to do with the consumer," she said.

Is data private property or Google's property? That's something the courts have yet to sort out.

About the Author(s)

Thomas Claburn

Editor at Large, Enterprise Mobility

Thomas Claburn has been writing about business and technology since 1996, for publications such as New Architect, PC Computing, InformationWeek, Salon, Wired, and Ziff Davis Smart Business. Before that, he worked in film and television, having earned a not particularly useful master's degree in film production. He wrote the original treatment for 3DO's Killing Time, a short story that appeared in On Spec, and the screenplay for an independent film called The Hanged Man, which he would later direct. He's the author of a science fiction novel, Reflecting Fires, and a sadly neglected blog, Lot 49. His iPhone game, Blocfall, is available through the iTunes App Store. His wife is a talented jazz singer; he does not sing, which is for the best.

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