Appeals court lets Google Street View suit continue

But Third Circuit tosses out all of a Pennsylvania couple's privacy claims, and hints that they may be only able to collect $1 in nominal damages for trespass.

A federal appeals court has reinstated a lawsuit that a Pennsylvania couple filed against Google after a driver for its Street View service took a panoramic photograph of their secluded home.

But the Third Circuit Court of Appeals hinted that Aaron and Christine Boring may only be able to wrest $1 in damages from the search company--unless they can prove that they were actually harmed in the moment the Google driver lingered on their property.

"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," a three-judge panel wrote in a unanimous opinion this week. "For now, it is enough to note that they 'bear the burden of proving that the trespass was the legal cause, i.e., a substantial factor in bringing about actual harm or damage' if they want more than a dollar."

The appeals court, in an opinion written by Kent Jordan, ruled that the trial judge was correct to dismiss all other claims against Google . In addition to their trespass claim, which now will proceed, the Borings had unsuccessfully argued that their privacy had been violated, that they should be awarded at least $25,000 in damages, and that punitive damages were also justified.

The Borings had filed their lawsuit against Google in April 2008, claiming that their house was on a private road that was clearly marked as one. Photographs of the couple's house similar to those taken through Street View appeared --they may have since been removed--on the county's Web site, as well as the assessed value of the Borings' home and the lot size.

In this week's opinion, the Third Circuit pointed to a 1982 case pitting coal companies against the United Mine Workers of America. The members of the Bituminous Coal Operators Association alleged that the union authorized illegal behavior including trespassing while picketing during a strike.

A district judge in that case gave the coal companies only nominal damages arising from the trespass claim: "Pennsylvania law provides that when a plaintiff proves a violation of a legally protected interest but fails to prove that any injury or damage resulted only nominal damages may be recovered. We find that plaintiffs would be entitled to recover, at most, the sum of $1 against the individual defendants."

Translation: To compel Google to cough up more than $1, the Borings will have to prove that they were injured by the presence of the Street View vehicle.

An earlier brief written by Pittsburgh attorneys Gregg Zegarelli and Dennis Moskal likened Street View to slavery, saying: "This court's ruling makes our private property a Google Slave; our property is no longer our own: it is forced to work for another, against its will, without compensation, for the profit of another. The federal court should free slavery, not create it."

Following are some excerpts from Zegarelli and Moskal's October 2009 brief:

Freedom begins with the right to be left alone. The Borings claim their right, as Americans, to be secure in their property, and to enjoy their property without intrusion or fear of intrusion. Google is a profiteer acting at its own risk for its profit. That is the balancing of it.

Google pooh-poohs the claim, and we understand their argument: Google is just like the "police," or a "lost driver." But, in point of fact, with such traditional examples, Google wants us to forget exactly the thing that is at issue: the technology. It is the 21st century panoramic 360 degree "rolling" digital camera, with worldwide publishing through Google's pervasive indexing system, that gives this issue context...

The recording, indexing, ease of access and dissemination of data--some more or less personal--yields its own social concerns that requires this court's attention. The Borings ask this court to give meaning to the truth: the expectation of seclusion is not absolute, it is relative. It is not secluded or not secluded, it is the expectation of seclusion from something. The Borings had an overt statement of their expectation of privacy: "Private Road No Trespassing."

Yet, Google kept coming, tires crunching, and kept recording, and at the barrier of the Borings' home itself, kept recording, and, with nowhere to continue but to drive into the pool, turned around in the driveway, and kept recording. Google was not on a street, Google was not taking pictures from the street, and no street was in view. But, Google published the pictures anyway, worldwide...

"It is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens and one of the noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise and entangled the question in precedents...We revere this lesson too much...to forget it."

- James Madison "Memorial and Remonstrance," in Rives and Fendall, Letters and Other Writings of James Madison, 1:163.

Disclosure: Declan McCullagh is married to a Google employee who is on leave.

 

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