Privacy from Street View Photos? — Boring v. Google

by Mr. X on February 20, 2009

Cnet reports on an interesting case involving Google Maps’ desire to image the entire world.

mapA couple in Pittsburgh whose lawsuit claimed that Street View on Google Maps is a reckless invasion of their privacy lost their case.

Aaron and Christine Boring sued the Internet search giant last April, alleging that Google “significantly disregarded (their) privacy interests” when Street View cameras captured images of their house beyond signs marked “private road.” The couple claimed in their five-count lawsuit that finding their home clearly visible on Google’s Street View caused them “mental suffering” and diluted their home value. They sought more than $25,000 in damages and asked that the images of their home be taken off the site and destroyed.

However, the U.S. District Court for Western Pennsylvania wasn’t impressed by the suit and dismissed it Tuesday, saying the Borings “failed to state a claim under any count.”

Ironically, the Borings subjected themselves to even more public exposure by filing the lawsuit, which included their home address. In addition, the Allegheny County’s Office of Property Assessments included a photo of the home on its Web site.

As framed, this is clearly a stupid lawsuit; nobody wins on NIED claims.  But the more interesting part of this suit, for me, is this section of the story:

However, Google claims to be legally allowed to photograph on private roads, arguing that privacy no longer exists in this age of satellite and aerial imagery.

“Today’s satellite-image technology means that … complete privacy does not exist,” Google said in its response to the Borings’ complaint.

I’ll take the aerial privacy argument first, since it’s straightforward. Google Earth takes satellite photos from space and most detailed sections don’t provide intimate information.  I think there’s relatively little debate on this point — mapping your house from space isn’t invading your privacy.  This reminds me of the criminal procedure case Florida v. Riley, 488 U.S. 445 (1989).  (From wiki b/c I’m headed to class):

Facts: A Florida county sheriff received a tip that a man was growing marijuana on his 5 acres (20,000 m2) of rural property. Unable to see inside a greenhouse, which was behind the defendant’s mobile home, the sheriff circled over the property using a helicopter. The absence of two roof panels allowed the sheriff to see, with his naked eye, what appeared to be marijuana growing inside. A warrant was obtained and marijuana was found in the greenhouse. Riley successfully argued before the trial court that the aerial search violated his reasonable expectation of privacy. The Court of Appeals disagreed, siding instead with the state, but the Florida Supreme Court agreed with Riley and overturned the Court of Appeals.

02-canabis

[Result/Reasoning:] The Supreme Court reversed the decision of the Florida Supreme Court with a four-vote plurality, arguing that the accused did not have a reasonable expectation that the greenhouse was protected from aerial view, and thus that the helicopter surveillance did not constitute a search under the Fourth Amendment.  However, the Court stopped short of allowing all aerial inspections of private property, noting that it was “of obvious importance” that a private citizen could have legally flown in the same airspace:

Any member of the public could legally have been flying over Riley’s property in a helicopter at the altitude of 400 feet and could have observed Riley’s greenhouse. The police officer did no more.

Also vital to the Court’s ruling was the fact that the helicopter did not interfere with the normal use of the property:

As far as this record reveals, no intimate details connected with the use of the home or curtilage were observed, and there was no undue noise, no wind, no dust, or threat of injury. In these circumstances, there was no violation of the Fourth Amendment.

Google Street View is different, but with similar policies underlying it.  They’re mapping from cars using cameras while standing on public property.  The law on this is is called the plain view doctrine — if I can stand on the sidewalk and look into your open window, there’s no invasion of privacy because it’s your fault for having your window open.  There are likely to be many laws implicated by this conduct like peeping-tom statutes, but, at its core, looking through an open window is not illegal.

Distinguishable?

Google is publishing all this data on the internet.  Is there a difference between looking into a window and taking a picture of somebody’s window and actively posting it on the internet?  Legally, should there be?  Google has been removed people’s information on request, but this isn’t triggered unless you actively police their products for your information — which can be very difficult (what street were you on at 12:30 on Sept 14?).  This is similar to when a friend tags you in a stupid picture on facebook — it’s out there until you plead with them to take it down.

Google Street View has received some significant media attention because it also captures people on the streets (Cnet):

Google’s recently unveiled Street View stunned many with its photos of the unsuspecting, from a man climbing a front gate to another walking out of a strip club, but it’s hardly the first time the company has compiled a massive database of material that some would want to remain private. Indeed, Google has for years been storing every Web search and analyzing the topics of Gmail so it can serve customers with related advertisements.

Top 15 Google Street View Pictures – including these two:

04. Guy getting into the adult book store.

Hey, it could have been worse. He could have been going out of a strip club, or something.

Adult Book Store

03. Guy getting out of strip club

We’re gonna have to be honest here: the guy looks like he’s merely paying for parking. But, that’s a strip club behind him, and we will, of course, assume he just spent some sexy time with Mimi and Peaches. Is that a happy grin on his face? Sure it is.

Strip club

But the Boring’s weren’t caught skipping out on work or doing anything illegal (Smoking Gun):

The company asserts that the images of the Borings’s Pittsburgh-area residence were “unremarkable photos of the exterior of their home,” and were taken during a “brief entry upon their driveway.” In their lawsuit, the Borings charged that a Google vehicle–outfitted with a panoramic camera on its roof–drove down a private road to take images of their Oakridge Lane home. In its dismissal motion, Google noted that it intends to prove that there was “no clearly marked ‘Private Road’ sign at the beginning” of the Borings’s street. Google removed its “Street View” photos of the Boring residence and swimming pool after the couple filed its lawsuit in April.

photoOMG a pool!

Previous coverage available here (Cnet) and Google’s Complaint is available here (Smoking Gun).  The big deal here is not about this individual case — which they were going to lose because they had no injury so they failed to state a claim.  It’s about whether Google can drive on your private property (clearly marked or not) to take photos of your property and put them on the internet.

I’m sure complex issues beyond my 2L nature are involved, but I find it interesting nonetheless.  The police in Riley weren’t publishing this information on the internet — they were using it to detect and prosecute a discrete crime.  Cases following Riley stress that the open fields doctrine firmly supports the result here if you can see their house from a public space (concluding that the expectation of privacy in open fields is not an expectation that society recognizes as reasonable.  But the argument that “any citizen” could fly a helicopter above this persons house looking for drugs.  That’s ridiculous.  What citizen (1) has a helicopter that (2) is going to fly over at this low and dangerous height and look into this guy’s greenhouse?  It seems that this niche has been filled.
If Google can produce a similar photo from space, or chooses to put Street View cameras on helicopters and fly around recording — where can the line be drawn?  I’m all about access to information, but in the age of traffic cameras (see Live Free or Die Hard), GPS, EZ-Pass, and Google it’s easy to join the tin-foil-hatters in believing that every move you make is being tracked.  These cases will continue to present interesting privacy questions as technology improves, but I’m not really sure how I feel about this one.

{ 2 comments… read them below or add one }

Joshua Auriemma February 20, 2009 at 10:57 am
Joshua Auriemma February 20, 2009 at 10:59 am

Also, we’re going to need to have a talk about the “adult book store.”

Reply

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