Mapping Privacy in the Google Age
Reported and Written March 2009
You’re at your desk. It’s late. You stare at the computer, bleary-eyed and bored.
You live, perhaps, in Los Angeles. You’re restless. You’re in the midst of experiencing a very real and overpowering urge to be elsewhere. If only you could be abroad right now, you think, somewhere different, somewhere distant.
You have neither the time nor the money to travel. And even were you, by some miraculous stroke of luck, to chance upon significant amounts of both, gratification would come far from instantly.
Then you remember other avenues lie open to you. You’ve heard of Google “Maps,” the option directly adjacent to “Images” and two to the right of “Web.” Google Maps has been around since 2005, but within that tab lies a newer, more exciting antidote to your ennui known as the “Street View.”
You enter Barcelona, Spain into the search box. Suddenly a map of the city appears. You press on the “satellite” box to the right of the screen, and the icons morph into photos. You zoom in so closely you can, as the heading promises, view the streets, wrought iron balconies visible in high relief, colored tiles glistening in the sunlight. You move your mouse, and the photo follows you, as you get a 360 degree view of the boulevard you’ve chosen to visit.
Voila, with but few brief clicks you’ve effectively managed to transport yourself to another country and another world.
Inspired, you wonder how far this Google function’s reach extends. Less than two years old and designed by humans, Street View cannot be omnipresent, you think. After all, you reason, you read in The Scotsmanthat Google added the UK to its arsenal just two days ago. In a moment of curiosity, you type in your home address, not believing your house would simply show up, that someone could have shot photos of your residence without you noticing.
You gasp as a photo of your home illuminates the screen. You nudge your mouse clockwise, watching Google Maps show you that 360 degree view of the street, this time your street, the houses, your neighbors’.
Unsure of what you should be feeling, you undergo a series of emotions, at turns awe and amusement, at others indignation and worry.
How impressive! Or how frightening. Google didn’t ask for your permission, and anyone typing in your address could see where you live, get a feel for the lay of the land and could eye your home from somewhere as near as West Hollywood or somewhere as far as Beijing.
Did Google Maps invade your privacy?
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Privacy as a right exists in some form or another in nearly every state. Because one’s “reasonable expectation of privacy” is a feeling, the courts within those states view the invasion of that privacy as a personal tort.
While it is a right, however, that right to privacy—or the intentional seclusion from others—is not an absolute one. Public figures who have chosen inspected accountability through their positions as political candidates, government officials, entertainers, sports figures or even through their involvement (voluntary or otherwise) in newsworthy occurrences, do not possess the same right to privacy other citizens would. Were, for example, the enjoyment of full privacy to affect the manner in which the public figure could carry out his or her public responsibilities, the figure would have to waive the right to that enjoyment.
Nevertheless, the states consider the invasion of privacy as wrong and a wrong that can be parsed into the four segments of false light, misappropriation, publication of private facts and intrusion.
So did Google intrude upon your privacy?
—
Aaron and Christine Boring argued it did theirs.
The Pittsburgh couple sued the company in April 2008 for an “’intentional and/or grossly reckless invasion of privacy’” after noting photos of their house crop up on the Street View segment of Google Maps, The Smoking Gun reported.
In the five count (invasion of privacy, trespass, injunction pleading, negligence and conversion) complaint they filed, one The Smoking Gun then published, the couple stated they bought their house on Oakridge Lane for $163,000 in large part for the privacy the street afforded them.
Because of the house’s location, they said, they had a “reasonable expectation of privacy.”
The loss of that privacy, they added, had caused their house to shed much of its value as well as to inflict mental suffering upon them. Google, they said, should, thus, pay them $25,000 in damages.
When it comes to invasion of privacy, the defendant may be liable if its invasion is both “highly offensive to a reasonable person” and is “not of legitimate concern to the public.”
The Borings explained they found Google’s shooting and posting of the pictures and what they called the subsequent devaluation of their property with the attendant mental suffering it evinced in them highly offensive. Similarly, they viewed the above actions as those not falling within the legitimate concern of the public.
They described this invasion as reckless as Google included the photos without considering the “commensurate risks,” presumably robbery, involved.
In order to provide the necessary images for Google Maps’ Street View, the Web behemoth’s minions must drive around, painstakingly shooting numerous digital photos of the streets they glimpse.
Should they restrict themselves to simply taking photos of objects at street level, they will not invade anybody’s privacy, as such buildings exist in plain view and are thus fair game.
But Google could not have obtained such detailed photos of their house, the Borings argued, unless its employee(s) had driven up Oakridge Lane, a street marked “Private Road,” and trudged up the 50 feet of driveway to the home, LAW.com printed.
That, they continued, was trespassing onto private property, an actionable offense falling within the intrusion category of what constitutes “invasion of privacy” from a legal standpoint.
Yet the Bay Area-based corporation explained that the home’s address was barely if at all visible in the pictures, and the Borings need simply check a box stating they did not wish to share the photos of their address for the photos to disappear from Google Maps Street View.
The Borings felt that was not enough. In addition to demanding damages, Christine and Aaron Boring stated Google should destroy the photos of their property and “cease and desist” from entering Oakridge Lane again.
Even were Google to have destroyed the images, as it later did, pictures would remain on the county real estate Web site from which the couple had discovered the property in the first place, The Pittsburgh ChannelWeb site’s Technology section indicated.
In what Law Shucks called “the silver lining” of “Google Getting Hit from all Sides,” the U.S. District Court of Western Pennsylvania dismissed the Boring v. Google lawsuit, rejecting the five counts within Borings’ complaint this past February.
The federal judge on the case as the photographer shot the photos from the street, as Google took the photos down on request and as a photo remains on a real estate site unaffiliated with Google.
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Oh the irony of it all.
The Borings did not win their case, but they certainly garnered a great deal of attention, thrusting themselves further into the public’s eye than they–or the photos of their property–ever would have been had they not sued the search engine king.
In attempting–and failing–to protect their privacy, they made themselves victims of the “Streisand Effect.”
Techdirt blogger Mike Masnick coined the term in 2005, while writing about a trademark-related case. He said
How long is it going to take before lawyers realize
that the simple act of trying to repress something they
don’t like online is likely to make it so that something that
most people would never, ever see
(like a photo of a urinal in some random beach resort)
is now seen by many more people? Let’s call it the Streisand Effect.
Masnick based the name on the 2003 case Barbra Streisand filed against a photographer/representative of an environmentalist group who had taken pictures of California’s coastline in an attempt to capture proof of its erosion but who had, in the process, shot photos of the singer-actress’ sprawling property as well.
In late May of that year, Barbra Streisand sued California Coastal Records founder Kenneth Adelman for $10 million for invading her privacy by intruding into her seclusion and by publishing private facts upon taking and posting the one photograph of her house along with the 12,000 others he shot and had put up on the group’s Web site to demonstrate the state’s eroding coastline and how developments had damaged it most.
The photograph, taken from a helicopter, depicted a large house with pool on the edge of a sort of crag. Because she had been threatened in the past, Streisand stated she felt showing this picture left her house more exposed to potential break-ins than it would otherwise have been, as she had been careful not to publicize either its whereabouts or the lay-out of the property, and that this was highly offensive to [her as] a reasonable person.
The Smoking Gun quoted Streisand saying the photo provided a “‘road map into her residence’ and ‘clearly indentified those routes that could be used to enter her property’” while clarifying that they, the site’s writers, were “not sure how an intrusion would be accomplished, but you never can discount the craftiness of rock climbers, hang [sic] glider pilots, and parachutists.”
In short, getting to Babs’ through the back’s no picnic.
Nevertheless, the singer filed her complaint in a tizzy and in it insisted Adelman take the photo down while also seeking an order to prohibit him from distributing the image. She argued that this picture was not of legitimate concern to the public.
But Streisand is a voluntary public figure, thus relinquishing the right to a certain measure of privacy and pushing any related information into one more of legitimate concern to the public than it would otherwise be. Moreover, the one photo was taken from above, so her property, described by Superior Court Judge Allan J. Goodman as containing “nothing private or personal” on it, could be visible from another plane.
Goodman and the court dismissed the case in December of that year.
The judge determined that there was nothing highly offensive about the photo or the publishing of it, and that it was within Adelman’s First Amendment rights to shoot it and place it within the series of 12,000 from the get-go. The state of California’s coastline is of public interest and taking photographs of it in order to better highlight its erosion is an action that falls within the “public affairs” section of 1972’s Coastal Zone Protection Act.
Streisand’s position as a public figure, and one who has expressed an interest in environmental policy to boot, could influence coastal zone protection, so retaining her name on the image would be a potential service to the public.
In filing this suit, the singer got both far less and far more than she bargained for. She certainly didn’t get those $10 million. She spent seven months fighting for the removal of a photo. But not only did she not achieve that removal, in those seven months, numerous other sites picked it up and published it, and it continues at present to languish online. Her house is far more visible today than it would have been had she quietly accepted its singular and comparatively unobtrusive presence on the California Coastal Records site–hence, the “Streisand Effect.”
Following Masnick’s neologism, Mickey Mellen founded a blog titled The Streisand Effect, chronicling all such instances of the phenomenon as they would crop up in the news.
The site carefully followed the Boring case, determining it as a situation falling within the descriptive confines of the Streisand Effect.
Though Streisand’s case predates Google Maps Street View, it appears to be a sort of prelude to cases like those of the Borings’, that deal with the unasked for online photos of purportedly private property with the further potential for widespread dissemination.
Some could perhaps say there’s something self-indulgent or even silly about both the Borings’ and Streisand’s claims, but some of the issues they raise, especially those the Borings raise with regards to Google Maps Street View, have what this writer feels is some merit.
But does Google Maps invade our privacy?
—
Legally and generally speaking, this writer does not think that it does.
If Google’s photographers remain true to the Street View function’s name and only shoot those things in plain street view, than they have neither intruded upon nor trespassed onto others’ privacy.
If they have simply depicted what the camera showed with no contextually incorrect or inapproprate captioning, than they have not presented those objects or people in the photo in a false light.
Should they have taken a photo while driving by a house and have shown a man leaving a strip club or in a romantic embrace with a woman other than his wife, they can take the damning shots down.
If those employees have caught an actress on digital Google-owned film but have not used her image to turn a profit, for example, they have not misappropriated it.
All that said, both Streisand and the Borings bring up a few of the numerous potential pitfalls plaguing Google Maps.
While the Street View option may not legally invade one’s privacy, it carries with it a certain unsavory quality that feels menacing, as if the function has by its very existence and actions legally, but no less perturbingly, encroached upon some implicit sense of the personal.
Google Maps does not notify individuals their streets and living spaces have been photographed. Of course, that would be difficult to impossible to do–especially given the fact that at the end of the day, humans take the photos and cannot knock on every door of every house of every street of every city of every country in the world. (Well, it’s impossible given Google’s ambitious plan to “provide” the Google Maps Street View to and of every metropolis on the globe.)
But wouldn’t it be, maybe, better to knock on those doors at the expense of a multitude of unathorized, if not illegal, photos? What purpose do those photos really serve? Aside from its delightful ability to transport an individual to another place in a few heartbeats, is there really a point to Google Maps Street View?
If its intent is simply to better ground the online visitor in the place he or she seeks to see, than this legal but slightly creepy bout of photo-taking seems pointless when the maps the site offers are, indeed, quite thorough.
Far be it for this writer to clamor for less information, but Streisand’s case raises some important questions.
Why should the person have to fight to take down a shot of his or her own home that he/she did not take or agree to?
When the photo is either kept where it is or taken down upon request but posted onto other sites, why should the layman have to deal with the Streisand Effect?
Barbara Streisand, herself, is a different case. While the “effect” bears her surname, she does not seem to present the ideal image of the invaded victim. Again, she is quite the public figure and should be subject to different privacy laws, but experiencing the Streisand Effect when not a public figure could be irritating, at best.
The Borings may have been pushing it with a $25,000 damage-seeking suit and one that claimed their property had significantly lost its value.
But take the money out of their complaint, and the angry surprise they expressed feeling at finding their home (a difficult one to reach and not likely to be seen by a casual passerby) on Street View seems completely valid. No one let them know their house would be on Google Maps. Once they found out and took it down, it was too late. Granted, a photo of their home lay on a real estate site–one of the reasons the judge dismissed their case.
Yet had their home not been on Google Maps, they would not have filed a lawsuit. Had they not (some could say rashly) filed that suit, the photos of their house would not be all over the Web, and they would not have experienced the Streisand Effect.
This writer fails to see how that house really contributes to the general quality of Google Maps Street View. She applauds the thorough and honest, but few would have seen the Boring house in person and only those chancing upon it by accident would have found it on Google. Now, that could be a conversational defense for keeping it on Street View, but would it have killed Google not to drive up 50 feet to shoot photos of a house no one would see or care about that those owning would not enjoy the viewing of in an online capacity?
Streisand’s mention of “commensurate risk” makes sense. Yes, those determined enough could rob most homes. Thieves have broken into or attempted to break into homes for likely as long as the concept and reality of homes has been around. But why make it easier?
Unlike the Streisand/Adelman situation, the photos on Google Maps do not provide the names of the people owning and/or living in the homes pictured. But in a time when so many may either own or gain access to computers, the steps between discovering where an inividual lives are but few. Say, for example, a thief does not know or care who resides within the home, though. He or she could simply see the address on the street, type it into Google Maps Street View and study it in a detail that would look suspicious were he/she to do so at the actual site, and he/she could likely spy nooks or crannies not immediately visible to the naked eye.
Google Maps Street View presents other possilities for awkwardness, squeemishness or discomfort.
It seems rather unlikely any photos compromising “national security” would remain on Google long. The Times Colonist explained how last week, the Pentagon barred Google from taking street view shots of “military installations” such as Fort Sam Houston.
But what of those photos of children or the scantily clad? Again, users could take them down. But more and more it seems impossible to erase even–or especially–a paperless trail, particularly when the Streisand Effect exists so vividly.
What if you’re at work, and your boss asks you to remind him what your address is, and you tell him, thinking because he is your boss, you have to tell him, remembering that he has it anyway. What if you watch him look your childhood home up and listen to him make comments about it, pass judgments on what your upbringing must be like and what your persona must thus be?
That is not an invasion of privacy, but it certainly feels inappropriate—completely irrelevant to the workplace and to whatever it is you’re doing and should be doing there. Yet that scenario can happen, has happened–to this writer, in fact.
Technology has changed, is constantly changing. Privacy was never clean cut, but when watching and recording and posting are so much easier, and accusations of a “Big Brother”-like world fly around with ever greater abandon, “privacy’s” nebulous nature becomes even more difficult to discern, penetrate or pin down. The law may itself have to evolve in order to accommodate a mutable or mutating world.
Perhaps the first step would be to legally bind Google into asking permission of those owning homes on residential streets. Is this unfair to those who reside on busier thoroughfares? The writer’s not sure. Is this tantamount to asking for an injunction, enacting prior restraint and thus limiting a freedom? Maybe.
But should folks have to find out their homes are visible online…by accident?
Or, short of that, should those same people have to ok the posting of pictures that already exist, thus keeping those photos at an ever-leakable position? Who would post the ok-ed photos? A human? Could not that same human send those photos to another site or sell them to those that would use them as break-in guides? Do not computer-generated algorithms sometimes err, publishing what they should not? It could happen.
That’s a lot of ifs–and possibly over-paranoid ones at that. But again, what purpose does Street View reallyserve? The manner and amount by which it improves upon Google Maps (just the drawings of the areas searched) remains unclear. So these questions may be a propos, after all.
In the meantime, you will take all this into account, accept that for now, your house is visible on street view, that you will do nothing about it and that you will, instead, alleviate your itch to travel with a five minute foray into Paris or Berlin.