1. law, govt and politics

Google Street View: Invasion of Privacy or Pertinent Publication? The Conflict of the
Right to Privacy With Freedom of Speech in the International Community.
Sean Bellah
I. Introduction
In this modern technological world, the free availability of information often conflicts
with a person’s desired level of privacy. This is not only true for celebrities seeking a respite
from paparazzi but is true for many individuals. Although many states and national governments
do have right to privacy laws such as claims of intrusion upon seclusion and publication of
private facts, the consistency of the requirements and enforcement of these laws lead to much
confusion and difficulty for the individual seeking to protect their privacy. A difficulty arises
when a photograph is taken in one location yet published in another jurisdiction. This especially
creates difficulties for international corporations that are attempting to disseminate information
in multiple jurisdictions and must follow all of the separate laws of those jurisdictions.
This article urges that there is a need for a more uniform international privacy policy
especially in the dissemination of photographs take in Google Maps and Google Street View.
The article addresses concerns arising from these Google services and compares the approaches
taken by the United States and various nations including Switzerland and the United Kingdom.
This article discusses why the European approach correctly protects the privacy of its citizens to
the point that is satisfactory while not restricting the information to a degree that it restricts the
individuals’ rights to know or the corporations’ entrepreneurial spirits as other countries have
done. It is important to not this middle ground between United States jurisprudence and
1 authoritarian control. This article urges that there is a need for American law to provide the
same amount of protection that European law has provided.
II. History of Right to Privacy Law
The idea of legal protection of a right to privacy began in the United States.1 The origins
of all modern rights to privacy undoubtedly descend from a Harvard Law Review article, “The
Right to Privacy,” written by Samuel Warren and Louis Brandeis in 1890.2 Warren and Brandeis
relied upon the Common Law to show how courts had sporadically enforced a right to privacy
and a right to “be let alone.”3 They theorized that the legal protection given to people and
property could be extended to include intangible property such as privacy.4 They urged that man
had always had protection from bodily injury under a right to life, but that protection was
expanded when courts recognized that a man’s spiritual nature included his feelings and his
intellect.5 They argued that the valuable protection of these components of a man created not
only a “right to life” but also created the “right to enjoy life, – the right to be left alone.”6
Warren and Brandeis based their theory of the protection of a person’s privacy on the fact
that man has always been able to determine how much of his thoughts, sentiments, and emotions
are communicated to the general public no matter whether the disclosure is done in words,
images, or even music.7 They noted there were similarities between privacy law and copyright
protection, but they proposed that privacy law is entirely independent.8 Specifically, the aim of
copyright law is to provide the creator with all the benefits of any publication of his creation
solely based upon the contents of the creation.9 Privacy law, on the other hand, gives a person
control of the dissemination of information regardless of the nature or veracity of the information
actually contained in the document.10 Additionally, copyright law protection remains even after
2 the creator has disclosed the information, and in fact, this period of protection is arguably the
most necessary time to have the information protected.11 But, according to Warren and
Brandeis, the right to privacy ceases upon the publication of the information by the individual or
with his consent.12
Warren and Brandeis emphasized that additional protection of a person’s privacy only
becomes more necessary with the invention of new technologies.13 In the time of their article,
the new technology of the day was the creation of the “instantaneous photographs and newspaper
enterprise.”14
Initially, the courts and scholars did not follow Warren and Brandeis’s suggestion of a
creation of a right to privacy.15 In fact, there were no statutory provisions until 1903, and no
court adopted a right to privacy purely under the common law until Georgia courts did so fifteen
years later in 1905.16 The right to privacy steadily became a part of American jurisprudence,
and, in 1939, the American Law Institute included the right to privacy in its Restatement of
Torts.17 After this period, Warren and Brandeis’s article is now greatly appreciated and
respected in America and even has been called “perhaps the most influential law journal piece
ever published.”18 Even though some feel the importance of the article, some question the
effectiveness of the subsequent legislation and common law interpretation.19
Origins of Privacy Law in Europe
Although the idea of a right to privacy may correctly be traced back to American
jurisprudence, the right to privacy is no longer purely an American concept.20 In fact, numerous
countries recognize a right to privacy.21 Furthermore, America has even lost its position of
privacy law leadership that it maintained through the 1960s and early 1970s.22 Some of Europe’s
3 earliest recognition of a right to privacy began in 1950 when the European Convention on
Human Rights (“ECHR”) issued a document laying out general rights that are basic to an
individual.23 Article 8 of that document recognized that an individual has a “Right to respect for
private and family life.”24 Article 8 states that:
1 Everyone has the right to respect for his private and family life,
his home and his correspondence.
2 There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country,
for the prevention of disorder or crime, for the protection of health
or morals, or for the protection of the rights and freedoms of
others.25
Article 10 further emphasized a person’s right to privacy by limiting other’s right to “Freedom of
Expression.”26
Article 10 was much like the First Amendment of the United States Constitution in that it
gives a person a right to express thoughts and ideas without interference.27 The biggest
difference between Article 10 and the First Amendment of the United States Constitution is that
Article 10 allowed the national governments to place constraints upon the freedom of expression
by stating that the freedom of expression is restricted “for the protection of reputation or the
rights of others, for preventing the disclosure of information received in confidence” among
other concerns.”28 The difference in the two show a fundamentally divergent approach to the
treatment of the right to privacy in Europe and America. The American point of emphasis for
personal protection seems to have always been the right to free speech without interference from
the government. This emphasis existed from the very beginning as shown in this protection of
free speech as the absolutely first right protected by the Bill of Rights. Contrast the protection of
free speech in the Bill of Rights with the absence of any express provision in the Bill of Rights or
4 Constitution creating a right to privacy. This missing protection is extremely noticeable because
of the fear that the founding fathers had of intrusion by the federal government on personal
rights.29 There was no substantial right to privacy until it was pieced together by the United
States Supreme Court in 1965.30 In fact, when the European human rights movement began it
began it attempted to focus on all individual rights while in the American “human rights
movement of the 1960s and 1970s” emphasized free speech above all others with “free speech
rather than privacy emerged as dominant.”31 The one drawback of ECHR document is that the
document had no legislative or legal power itself, and many European governments did not adopt
formal legislation until much later.32
In fact, many national privacy statutes and national privacy agencies are traced back to a
data protection law enacted in the Land of Hesse in Germany in 1970 rather than the ECHR
document.33 Laws similar to the one enacted in the Land of Hesse were later passed in Sweden
(1973), the United States (1974), Germany (1977), and France (1978).34 Later, through a united
European effort, Europe remained at the forefront of privacy law in the early 1980s when the
Council of Europe passed the Convention for the Protection of Individuals with Regard to the
Automatic Processing of Personal Data and also when the Organization for Economic
Cooperation and Development issued Guidelines Governing the Protection of Privacy and
Transborder Data Flows of Personal Data.35 The two documents are important for two reasons:
1) many countries based their privacy laws on those documents and 2) they presented principles
for protecting data pertaining to personal information in its collection, processing, storage, use
and transfer.36
Comparison of American Privacy Law Fundamentals With Those of Europe
5 Once again European law shows a focus to control the dissemination of personal
information by the government. This allowance of the government interference into “free
speech” shows the true importance that European governments have placed on privacy among
other human rights. Contrast this protection to the American model. American jurisprudence
only allows a person to recover through expensive, time-consuming litigation with questionable
chances for success.37 A person must be wary and diligent about watching for the publication of
his or her own information and be ready to actively pursue and halt any disclosure or publication.
Adding further difficulty to the protection of information is the fact that if the information
disclosed in a disseminated article or image is considered “newsworthy” or of public concern, a
person has almost no chance at being able to restrict the information from widespread
publication.
American courts focus on the free speech rights of the individual sharing the information
and allow the publication of information that the court deems to be of public concern, or
potentially interesting to the public community. One could say that American courts will always
protect the right of expression when the court feels that information shared is interesting no
matter the affect on the individual. With the growing sphere of “celebrity,” the domain of
information deemed “of public concern” has continued to grow. With the expansion of “public
concern,” American courts have continually shrunk privacy by continuing to use the same test
that they have used many times through the years. American courts continually shrink privacy
for the purpose of intending to protect free speech. American courts battle heavily for free
speech, but the question is whether their approach or that of the European governments is the
better approach. This article will deal with examples of individual European governments
treatment of Google Street View with that of Google Street View’s treatment by the American
6 courts and give reasons that European governments protect citizen’s privacy to a satisfactory
degree when America does not.
III. History of Google, Inc. and Its Map Service
In 1997, Larry Page and Sergey Brin decided to change the name of their search engine
from Backrub to Google, a play on the word googol.38 In the September of the following year,
Larry Page and Sergey Brin filed for incorporation of a company surrounding their search
engine.39 The name of that corporation is Google, Inc.40 In February 2005, Google introduces a
new map service in the United States called Google Maps.41 It was an attempt to do more than
rival the map services provided by competitors like Yahoo! and MapQuest.42 In April 2005,
Google Maps also provided a groundbreaking service to its United States’ users in that it allowed
those users to see more than maps and directions; it allowed its users to actually view satellite
images of locations on the maps.43 In that same month, Google implemented Google Maps in
the United Kingdom as its first implementation in Europe.44 In June 2005, Google implemented
its Google Earth project that allowed users to see three-dimensional models of major cities in the
United States.45 In April 2006, Google implemented Google Maps in France, Germany, Italy,
and Spain.46 In February 2007, Google brought its map system to Australia.47
Benefits and Controversy Resulting from Satellite Images in Google Maps
Even from the beginning of its implementation, Google Earth and Google Maps were
unquestionably technological and informational achievements.48 Their implementations even
lead one journalist to write that “[t]he instant Google Maps appeared, a lot of us knew right away
that we’d never use MapQuest again.”49
7 Although there was no debate whether the projects were informational and helpful in
some situations, there were also a long list of concerns and issues arising from their
implementation. Indian President A. P. J. Abdul Kalam was one of the first government leaders
to express concerns about security issues arising from the implementation of these projects.50
President Kalam was concerned that the availability of the satellite images opened up the
countries to exposure to terroristic attacks.51 He said that this danger was particularly pertinent
in “developing countries,” because they are already susceptible to terroristic attacks that are only
more susceptible after Google made high-resolution satellite images showing sensitive locations
available to all Internet users.52 President Kalam was especially concerned with the images that
show the President’s house and surrounding governmental buildings.53 He also expressed
particular concern in the satellite images depicting the location of key Indian defenses.54 Prior to
his role as president, President Kalam was a scientist responsible for supervising India’s guided
missile programs.55 Relying on his expertise from his previous position, President Kalam called
for laws restricting dissemination of satellite images.56 President Kalam’s concerns are later
vindicated in his own country.57 Three years after President Kalam’s statement, terrorists studied
Google Map’s satellite images in preparation for their attacks in Mumbai.58
President Kalam was not the only government official to express these concerns;
government officials of South Korea, Thailand, Russia, and the Netherlands all expressed similar
concerns.59 South Korea’s concerns concerning national security were and are especially strong
based on the fact that South Korea is still technically in a war with its communist neighbor,
North Korea.60
Not only have there been concerns about the location of facilities, but also Google
satellite images have led to the leakage of sensitive information regarding what items are present
8 at those facilities.61 In 2005, Der Spiegel, a weekly German magazine, spotted a Google
photograph that captured a B-2 stealth bomber outside a United States Air Force plant.62 The
article states that although it's prohibited to photograph or even get close to military bases, the
photograph nonetheless captured sensitive information about the location of the bomber.63
Satellite images of items potentially endangering national security posted to the public online are
supposed to be blurred to prevent lapses in security.64 In that image, the visual rendering of the
bomber jet was somehow not blurred correctly and the image of the stealth bomber was
mistakenly visible to the public.65
Google responded to both of these concerns by stating that they were only making more
accessible information that was already available to the public.66 Google also emphasized that
the photographs were not “real time” photographs but that the photos were old.67 Furthermore,
Google stated that no government from any country had officially discussed any concerns with
them, but Google had actually sought constructive dialogue with governments.68 In fact, Google
emphasized that its efforts to maintain national security were all implemented by Google’s
initiative, and that Google has been very interested in hearing any feedback or concerns from
governmental institutions.69 Google listened to concerns and stated that it already had measures
to prevent these problems. The main method that Google employed in an attempt to maintain
national security was to blur locations of national interest such as the Pentagon, the White
House, and the vice president’s residence.70
Understandably, many governments were unhappy with Google’s refusal to delete any
information and its use of blurring as the only remedial option, especially considering the
inconsistency that Google had shown in implementing the blurring technology.71 For example,
the White House was blurred the week of August 17, 2005, but the blurring was missing the
9 following week while the vice president’s residence still remained blurred.72 Google stated that
part of the problem was that there was not consistent standards placed by independent
government agencies regarding government information, and in no situation was this problem
more pertinent than the information in satellite images that Google actually obtained from the
government agencies themselves.73 Although the lack of specificity from government agencies
would indeed be frustrating, it is unclear why Google would fluctuate which photographs were
blurred without the government telling them specifically to blur or remove certain images.74
There was some definite inconsistency in Google’s behavior and not only in the messages
received from the separate governmental organizations but in their varying treatment of the same
images from week to week. Although Google experienced some concerns with privacy dealing
with satellite images portrayed on its maps, it was only a precursor to its Google Street View
service, a larger invasion of privacy facing even more opposition.
Google’s Implementation of Street View
In May 2007, Google added Street View in five major United States cities in an attempt
to further improve its map service.75 Google Street View gives users a view from the
“perspective of drivers and pedestrians” on the street.76 This perspective allows drivers to view
the actual surroundings of locations where they must actually turn or alter their directions.77
Street View provides 360 degrees horizontal and 290 degrees vertical panorama street level
views.78 Google creates these photographs using multiple special cameras attached to equipment
that has built-in GPS that allows Google to match the images to specific location.79 Google later
takes these images and “sews” them together using which camera input and GPS location to
create a 360º panoramic view.80 Google captures these images by mounting the camera
10 assembly to a vehicle which currently includes two options: 1) views from streets are captured
from a camera mounted atop an ordinary car whose model depends upon the country in which
the car is working and 2) views from locations inaccessible to cars are taken from the back of a
“Trike,” a three-wheeled bicycle “reminiscent of an ice cream cart.”81
From the beginning of its implementation this tool has been used to implement many
varying different types of ancillary services based on the images from Google.82 Although
many services have relied upon Street View and reviews have lauded the praises of the service, it
has not been a universal success and has led to some complaints.83
IV. Google’s Confrontation of Initial Concerns in Europe Specifically in Germany
Even from the beginning of Google’s implementation of Street View in Europe in the fall
of 2008, there have been numerous concerns about the legality of Street View.84 For example, a
few months after Street Views implementation, city officials in the town of Molfsee in Germany
said that Google could not legally take photographic images unless they first received a permit
from the city officials.85 Furthermore, the city officials made it very clear that they would not be
willing to grant a permit to Google.86 Effectively, the city officials banned Google from
implementing Street View from all service in Molfsee.87 Google showed little resistance to this
challenge for the particular city and deleted the images of that area.88 Google did make this
change without any formal legal pressure, but they limited the remedy and did not change any of
the images for the rest of Germany or Europe.89 Google’s action successfully avoided litigation
in Germany and established a method of resolving conflicts by Google by simply removing
photographs.90 Although litigation was avoided in this situation, the question about future
litigation was not settled since complaints about Google’s Street View were and are not merely
11 about permanent publication of images.91 The complaints concern any publication regardless of
the length of publication, because residents are concerned with the actual capturing of those
images.92 Google’s actions were only a postponement of a potential actual confrontation that
Google later met and is still confronting from International courts or governments dealing with
the public’s concern about having the photographs taken in the first place.93
V. Google’s Confrontation of Concerns in the United Kingdom
An example of complaints received in the United Kingdom include those reported when
Google captured images in city of Teeside in the United Kingdom.94 In that town, Mr. Stuart
Rickard saw a Google Street View car with its “six or seven cameras” mounted on a six foot pole
taking images in his neighborhood.95 Mr. Rickard “couldn’t believe Google were here [sic]
doing this” and spoke to the driver of the Google Street View car.96 When the Mr. Rickard asked
the driver to not take photographs, the driver responded by saying, “You can't stop me. It’s a
public highway.”97 An upset Mr. Rickard did not agree and told the driver that he was with the
driver capturing images, because the driver was infringing upon his privacy rights by taking
photos of his house which was “a private house, it’s not as though you’re looking through fields
and trees, you’re on my doorstep.”98 Mr. Rickard later told the newspaper that privacy was not
his only concern and that he was concerned about the Google Street View service being used by
burglars to look for signs of an alarm.99 Another woman, Debbie Williams, was also concerned
when she saw the Google Street View car drive down the street not merely once but a couple of
times.100 Ms. Williams major concerns were privacy and safety, especially since she lived in her
house with her seventeen-year-old daughter.101 Ms. Williams also stated that she was not the
12 only single parent that felt unsafe and vulnerable due to Google’s Street View service and that
those other single parents felt that it “put you at risk and affect[ed] your privacy.”102
The residents of Teeside are not the only individuals that have found reason for
complaint. Many residents of other cities and towns around England have voiced a multitude of
complaints about the service and its invasion of privacy and seeming lessening of security. For
example, a couple from the town of Staunton voiced similar complaints when Google took
images of their neighborhood.103
In these cases, Google’s response has been initially unsatisfactory. First, the statements
made by the Google Street View drivers in the case of Mr. Rickard and Mr. Pond were not
apparently aimed toward any goal of appeasing the citizen complainants. The statements only
consists of the drivers rudely stating what is their right without any concern for those citizens or
the company’s image in these locations.
Individual residents are not the only complainants. Many privacy advocates and
campaigners have sought to have Google Street View banned or given increased things to
increase protection of privacy.104 For example, Privacy International, a London-based privacy
advocacy group, has campaigned and petitioned on March 23, 2009, for the Information
Commission’s Office to take action.105 Privacy International appealed to the Information
Commission’s Office because that office is responsible for data protection in the United
Kingdom.106 Privacy International argued that the Information Commission’s Office had the
ability and responsible to intervene because of the Data Protection Act of 1998.107 Although
Google had previously consulted with the Information Commission’s Office and had received
approval of the actions that Google was already making, Privacy International said that the
implementation of these solutions was not sufficient and that Google’s capture, use, and storage
13 of images should require Google to comply with the Data Protection Act of 1998’s data
protection principals.108
Data Protection Act of 1986
The Data Protection Act of 1998 is the current act dealing with privacy in the United
Kingdom.109 It contains guidance on both obtaining and disclosing any information that that
means that a person is likely to be identified from that information.110 The first and most
pertinent principal from the Data Protection Act is that of “fair and lawful” processing of data,
that is, a person is entitled to being informed by the data controller when the data controller has
any personal information that will be processed by the data controller.111 Furthermore, a data
controller may not even begin processing private information unless data controllers have
entered themselves in the register held in the Information Commissioner’s Office.112 The Data
Protection Act then can give a little more leniency to data controllers by not requiring disclosure
unless they receive a written request from the individual, and the data controller may charge a
fee in exchange for the sharing of that information.113
Privacy International argues that the Google Street View must instead give advanced
notice of the capture and must inform individuals when “they are capturing their image, the
purpose for which they will use the image and any other information necessary, having regard to
the specific circumstances in which the image is being captured or used, to enable the processing
of that individual's image to be fair.”114
The difficulty with enforcing “fair and lawful” processing of data is that this type of data
processing does not have to enforced when the effect does not match the effort.115 Additionally,
one of the requirements is that certain conditions be met before effective and one of those
14 conditions is the consent of the individuals to whom the information pertains.116 The difficulty
with obtaining that consent is that it would require a massive undertaking by Google. The
likelihood is that they would have difficulty getting everyone to sign and not merely because
people want to protect their privacy but that people are not that proactive unless it is something
that they truly care about. Google would seemingly almost have to go door-to-door in the
neighborhoods that they are implementing in an attempt to get consent from every residence and
company, or Google would have to tremendously reduce its Street View to include only a small
minority of locations. This is likely the exact reason that the Information Commissioner’s Office
found that Google Street View did not need further provisions for the protection of before
implementation and what solutions that they had already enforced were sufficient.117
Google’s Reaction to Citizen and Organizational Complaints in the United Kingdom
Google’s initial public statements were not very reassuring. In a statement given by a
Google spokesperson, the spokeswoman stated that Google could not verify or warn citizens of
visits by the Google Street View car, because Google had no way of confirming the location of
where Google Street View car drivers were working.118 Google also effectively said that Street
View should not be a privacy concern, because images depicting faces and license plates are
automatically blurred.119 This statement by them is highly questionable as a sufficient solution,
because there are a multitude of reports of the automatic blurring not occurring.120 Blurring is
not an adequate remedy, because simple blurring does not completely remove the ability to
identify individuals.121
Furthermore, a Google spokeswoman emphasized that “if anyone doesn't want their face,
dog, car, or house displayed, they can hit the Report a Problem area on the screen and we will
15 remove it.”122 This remedy shouldn’t seem sufficient though, because the complaints that
Google received were because the citizens were concerned with the actual capture of the
photographs and not merely the publication of those photographs.123 Although some people did
have problems with security issues that would arise from publication of photographs, Ms.
Williams, among others, complained about potentially having been seen through the window,
and not merely concerned with the publication of photos. The deletion of images or the blurring
of potentially offensive images does nothing to prevent any intrusion upon the citizens’
seclusion. Furthermore, even if complaints only dealt with publication, deletion after submitting a
request does not solve all issues. First, this requires a person to be diligent without knowing
specifically when potential images may be captured or posted. In the scenarios discussed above
if the citizens had not seen the car they would have not known that anyone had photographed
their homes, but this lack of knowledge is not a defense, because there is no question that a
person photographed in their home has had their privacy invaded even if the photographs are
never subsequently published.124 Additionally, even if a person happened to know when they
were photographed this does not guarantee that they would know when the photograph is
actually published. Like the situations discussed above, the individuals were told nothing about
the photographs and no response to even what would be done with the photographs.125 To
remove the photographs a person would have to continually monitor Google Maps to see if their
home was shown. This solution unfairly places too much of a burden upon a citizen to maintain
their own privacy. Furthermore, if there were any other services to implement a service similar
to Google’s Street View the burden would be even greater upon the citizen, because the citizen
would be required to continually scour the Internet for services similar to Google Street View
16 and individually petition them all to be removed.126 Google posts images without any consent,
implied or express, without any way for a resident to know about the publication. Second, even if a resident were to monitor Google Maps and Street View the removal of
offensive images is not totally satisfactory, because the time that the photograph is posted still is
some publication even if the time published is extremely short. In this Internet age with digital
images, even a minute publication period provides an opportunity for one individual to copy the
image and publish to another website before Google takes the image down. For instance, a
Google Maps’s satellite image captured a stealth bomber in one of its images, and although
Google later replaced the image, the image is still available from a news magazine that copied
the image before Google removed it.127 Although the stealth bomber capture may seem to be
unlikely to be replicated because of the sheer odds and rarity, Google Street View’s
embarrassing or attention-grabbing images have led to a formulation of a multitude of websites
that show interesting Google images and host them separately from Google’s webpage
preventing Google from effectively taking down offensive images because they no longer have
exclusive possession of the images, especially since Google does not exert any control over those
images.128 The Information Commission’s Office has also ruled against Privacy International and
held that Google’s Street View does not invade privacy because the capturing of individuals is
only incidental to the purpose of the service.129 The Information Commission’s Office also
stated that the images were only instantaneous photographs rather than video recordings a
substantial factor in their decision that Google’s Street View was not an invasion of privacy.130
Although the agency that has responsibility for the protection of privacy in the United Kingdom
has decided that Google has not invaded the residents’ privacy, residents and privacy advocates
17 have not given up hope.131 Residents and advocacy groups are still hoping that Parliament will
respond to their complaints and make some changes either to the way that the Information
Commissioner’s Office behaves or change the way the legislation operates, but unless that
happens there will not foreseeable changes to Google Street View system’s implementation in
the United Kingdom.132
VI. Google and Issues in the United States: Boring v. Google
The United Kingdom has not been the only location that Google Street View has
encountered complaints. Google has had complaints even from inside the United States. In fact,
one couple brought a complaint against Google in the Western District of Pennsylvania in April
of 2008.133 The complainants, Aaron and Christine Boring, filed a complaint with five
allegations.134 They complained that Google invaded their privacy, committed trespass,
committed conversion, and committed negligence.135 In addition, the Borings filed for injunctive
relief to stop Google from hosting the images on their website.136 The Borings live on an
unpaved private road north of Pittsburg, Pennsylvania.137 At various points, the Borings had
erected Private Property and No Trespassing signs to inform drivers of the status of the road and
to ensure their own privacy.138 At some point, the Borings noticed that there was “colored
imagery” of their residence, pool, and other “outbuildings” on Google’s Street View.139
Furthermore, the Borings were upset with the pictures because they stated that the images were
clearly taken from “a vehicle in their residence driveway” without consent or knowledge.140 The
court dealt with two similar theories both under the same umbrella theory of a right to privacy: 1)
intrusion upon seclusion and 2) publicity given to private life.141 Although these two claims are
very similar with much overlap, they are separate claims with some elements that are unique to
18 each of these tort actions.142 Additionally, the claims themselves vary somewhat from one state
to another with some states adding additional elements.143
Google v. Boring: Intrusion Upon Seclusion
The court granted a motion to dismiss for failure to state a claim and held that there was
no invasion for privacy under the theory of intrusion upon seclusion based on multiple
reasons.144 The court first pointed out the elements of the claim.145 First, there must be a
physical intrusion into a place where the plaintiff is secluded or there must be a use of the
defendant’s senses to “oversee or overhear the plaintiff’s private affairs” or some other
investigation into the plaintiff’s private affairs146 Second, the intrusion must be highly offensive
to the ordinary reasonable person.147 The court focused heavily on the second requirement of
this tort.148 The court stated that although many people may resent having their property shown
on Google Street View, “it is hard to believe that any-other than the most exquisitely sensitivewould suffer shame or humiliation.”149 The court held that the Borings’ conclusory claim that
the pictures were offensive to them and would be offensive to other people was not enough
support to sustain the case beyond a motion to dismiss.150 Additionally, the court stated that some relevant factors that made them doubt the level of
offensiveness that the plaintiffs themselves truly felt.151 The court stated the images could not be
offensive because the Borings brought attention to the Street View images of their home through
litigation.152 Furthermore, the court stated that this was important because the Borings admitted
that they allowed their images to remain on the Google Street View service even though they
knew about the method that Google provided to residents to have potentially offensive images
removed.153 Also in relation to publicity through the litigation, the court stated that the Borings
19 could not have been that offended by the images and information because they did not remove
their address from the pleadings or file the action under seal.154 The court even went to say that
performing a search of the Borings’ attorney’s name allowed anyone to find the allegedly
offensive images.155 Relying on these factors, the court found that the intrusion was not highly
offensive because the Borings did not “protect their own privacy.”156 The Western District of Pennsylvania District Court’s reaction and ruling in this case
shows an obvious strong distaste by the court for a claim of invasion of privacy especially under
the theory of intrusion upon seclusion.157 The court does make a strong and reasonable argument
that a person is not highly offended if they do not perform available methods of removing the
information from public availability. Although this one argument may be legitimate, the court
does not acknowledge any factors or concerns that might actually cause a person to hesitate to
take this measure before litigation. For example, a person may feel that this remedy provided by
Google is not sufficient, and if they simply removed the images through Google’s form then
there would be no ongoing cause of action and might be less likely to be able to bring a claim
based on an intrusion upon seclusion. A plaintiff might be concerned for evidential reasons if
they do not trust Google and may be concerned that Google will remove the image permanently
or even replace the image with one that might be less offensive through Google’s practice of
updating Google Street View images. The plaintiff may be concerned that the modification or
removal of the image will hurt their case at trial. Even if the court does not find an excuse, just
because the court finds a person’s subsequent action to be unreasonable does not mean that the
person cannot be highly offended. The court also relied on some of the Borings’ subsequent actions as questionable factors
to determine if a person was highly offended at the time of the intrusion.158 The court used the
20 fact that the plaintiffs did not remove their name from the pleadings as a factor in determining
that the capture of the information was not highly offensive to the plaintiffs.159 This reasoning
seems harsh, because the inclusion of the plaintiff’s address in the pleadings seems to be an
attempt to make a full and thorough disclosure of the facts and surroundings. Instead the court
uses it as a reason to find that the capture of the information was not highly offensive to the
plaintiff.160 Furthermore, the information of the location was very pertinent in this case because
the address shows that the plaintiffs lived on an unpaved private road that they referred to as
their “driveway.”161 This is particularly important because this is the street that Google allegedly
captured the images from.162 The other reason put forth by the court is actually more severe. The court stated that the
fact that any Internet search of the plaintiffs’ attorney would allow individuals to find
republications of the images and the Borings’ names.163 This factor is present in many cases
especially in cases of greater publicity dealing with large corporations such as Google and
Microsoft. Technological websites that closely track litigation involving technology
corporations often contain the same type of information in any case dealing with technological
giants such as Google.164 In addition to the harsh reliance on the factors, the court shows that a fundamental of the
American justice system’s provision of a tort remedy for an intrusion upon seclusion fully relies
upon the plaintiff to “protect their own privacy and mitigate their alleged pain.”165 In other
words, the court almost directly stated that a plaintiff cannot prove that their privacy has been
invaded through an intrusion upon their seclusion unless they have worked to protect themselves
and do everything possible to mitigate the offensiveness of the intrusion.166 The burden of
21 privacy protection is plainly upon the plaintiffs to protect themselves and prevent an unwanted
intrusion into that privacy.167 Boring v. Google: Publicity Given to Private Life
The court also granted the motion to dismiss for the claim of an invasion of privacy based
on the theory of publicity given to private life.168 The court first laid out the elements of this
claim.169 First, there must be publicity given to some facts.170 Second, those facts must contain
private information.171 Third, the publication must be highly offensive to a reasonable person.172
Fourth, even if there is a highly offensive publication of private facts, there is no actionable
claim of publicity given to private life unless the information disclosed is not of legitimate public
concern.173 Although the court listed all of the elements of the claim it really only addressed the
third element.174 Again the court focused on the fact that the plaintiffs did not protect their own
privacy and found that this lack of enforcement of protection by the plaintiffs was again enough
to prove that the plaintiffs were not highly offended by the invasion of privacy.175 Essentially,
the court held that in a case based on publicity given to private facts a plaintiff cannot sustain a
claim giving the same outcome as a claim based on intrusion upon seclusion.176
Deference Given to Free Speech in American Law Epitomized by Boring v. Google and the
Second Restatement of Torts
In American law, deference is often given to free speech even to the expense of other
basic human rights.177 That deference is clearly shown Boring v. Google.178 Often when an
element of a claim states that something must be measured by a reasonable person standard
courts are very likely to allow a case to proceed to a jury and are unlikely to dismiss a case in
22 preliminary motions.179 That usual deference to a jury is basically subsumed by the deference to
free speech and the apparent hostility toward a claim of invasion of privacy.180 Even without any
deference to passing a reasonable person question to the jury, there is a reasonable argument in
this case.181
In this case, it is clear that this court has a clear disdain for a right to privacy.
Also the court places a heavy burden on all plaintiffs to ensure their own privacy before any
alleged invasion of privacy. Even more difficult for the plaintiff is the burden that this court
places on plaintiffs to ensure privacy after the invasion even throughout the process of the
litigation.182
Another factor that shows the strong deference given to free speech is one of the elements
of publication of private facts stated by courts and also stated in the Restatement of Torts.183
This most litigated requirement is that the plaintiff must prove that a published fact is not
newsworthy or of public concern.184 Courts have adopted legal tests to determine whether a fact
is newsworthy: social balancing test and the appropriate nexus test.185 Both of these tests have
their own weaknesses. The social balancing always stacks the deck against the plaintiff by
requiring the plaintiff to always overcome the strong interests that defendants have in their own
right to free speech.186 The appropriate nexus test is a low bar to information being found to be
of public concern.187 In this modern world, information is becoming more available, and a
massive number niche websites and news-hungry markets have continually expanded what can
be considered newsworthy. Furthermore, under either of these tests, the court often defers to the
media’s designation of what is newsworthy.188 Some courts apparent strong distaste of privacy
claims, the difficulty of meeting the newsworthiness requirement, and the difficulty of enforcing
your own privacy all have almost totally removed all effectiveness from right to privacy tort
claims in American courts.189
23 VII. Google’s and Issues in Switzerland
Another country in which Google has experienced heavy resistance to its Street View
service due to its potential interference with the right to privacy is Switzerland. Within days of
Google’s implementation of its Street View service in Switzerland in August of 2009, Hanspeter
Thür, Switzerland’s Federal Data Protection and Information Commissioner urged Google to halt
the capturing images and to remove the images from the Internet immediately.190 In his role of
federal commissioner, Mr. Thür is responsible for investigating both federal and private bodies
and making sure that they are complying with data protection191 He also advises citizens with
how to obtain official documents through Swiss’s freedom of information laws.192 The federal
commissioner may conduct investigations through his own initiative or through urging by private
citizens.193 Although the federal commissioner is a government officer, his role is primarily that
of consultant but can sue to reconcile certain controversies in the courts.194 The reason stated by
Hanspeter Thür for this demand of removal is the images is that the implementation by Google
was not compliant with Swiss Federal Laws.195 The offending problems were primarily in the
failure of the system to perform the functions that Google had stated that it would always do:
automatically blur faces and automatically blur license plates.196 Thür stated that reports from the
public and through his own investigation he discovered that “[m]any faces and car numbers have
not been blurred, or only insufficiently so.”197 At this point, Thür informed Google that he
wanted them to "improve the service and ensure that the images published meet Swiss legal
requirements."198 Although he had initially demanded that the service be taken down, Thür
extended a deadline to thirty days later from the August 21 publication.199
24 Google’s reaction to this statement and urging by the federal commissioner shows no
initiative to do anything other than just make the blurring more consistent.200 Google Switzerland
spokesman Matthias Meyer said that Google already places the highest importance on privacy
protection.201 He stated that the protections that Google had already had in place were good
provisions that “like any new technology it still makes mistakes now and then – occasionally
blurring things that shouldn't be blurred, or missing some things that should.”202 Furthermore,
Google stated that they had received only a small number of complaints about images taken in
Switzerland.203 Thür strongly disagreed with this statement.204 He stated that, in the first week,
Google had already received 300 requests to have the images removed, which he believed is a
large number of complaints especially for the first week.205
The difference in opinion of what is an unreasonably high number of complaints also
raises concerns about what else Google may find to be reasonable when many others may not
agree.206 This is especially a concern considering the fact that Google keeps all images that it
takes.207 The pictures that Google keeps are completely unedited even if the published images
are blurred or even if the images are removed from publication.208 This became a concern to the
federal commissioner’s office largely because of the information sent to them by Sébastien
Fanti.209 Mr. Fanti is a lawyer that specializes in Internet issues.210 Mr. Fanti presented an entire
sheaf of complaints that he had received concerning Google Switzerland.211 Another
questionably bigger concern that Mr. Fanti presented showed concerns about Google’s disclosure
of the unedited images.212 Mr. Fanti was concerned because he stated that under the United
States Patriot Act, the United States government can comb through all information owned by a
United States corporation even without a court order.213 Google has never denied that it
cooperates with the requirements of local governments in sharing the information with those
25 governments.214 His ultimate concern is that this information shared with the United States
government would not be the blurred images, but the unmodified images that Google
possesses.215 This brings about substantial security concern, because foreign governments
cannot stop Google from passing those unaltered images to the United States government if they
allow Google to take and possess the images in the first place. The only possible ways to
prevent the dissemination of this information would be to ban Google or somehow prevent
Google from gaining images of the sensitive information. Otherwise, as Mr. Fanti stated, “[i]f
the CIA asks to see what was going on in Zurich this spring, Google isn't going to provide
blurred images.”216
After the Initial Deadline
After the thirty day deadline passed, commissioner Thür stated that the complementary
measures implemented by Google were still not sufficient to guarantee a sufficient protection of
privacy.217 Google’s reaction to his initial complaints was inadequate because Google only
wanted to improve the consistency of blurring of images of faces and license plates and continue
to remove images only after receiving complaints.218 Essentially, they wanted to make no
modifications to their system beyond removing or blurring images that slipped through the
automatic system. Thür was unhappy with this measure because even blurred images did not
give “complete anonymity” required by Swiss law.219 To remedy this, Thür demanded that
Google implement a better system for more thoroughly blurring faces and license plates.220
Also, Thür demanded that Google implement a system that removes all portrayals of private
streets from images that are to be published.221
26 Additionally, there were other concerns raised because of the height of the cameras
mounted on the Google cars.222 Thür stated that one of the most significant privacy issues with
Google Street View was that it captured images of private locations that are not observable by a
common pedestrian such as a yard.223 To prevent this problem, Thür demanded that Google
lower the height of the camera on top of the car in addition to preventing the publication of
images of private areas.224 Thür also demanded two more actions from Google in implementing
Google Street View.225 He demanded that Google also inform local authorities one week prior to
capturing Street View images.226 Additionally, he demanded that Google give local authorities
one-week notice prior to publishing those images.227 After submitting these demands, Thür gave
Google thirty days to reply and confirm whether they accepted or rejected these demands.228
According to Thür “Google for the most part declined to comply with the requests” stating that
they are convinced that Street View is absolutely legal in Switzerland.229 In response to this
refusal to comply Thür sued Google in Swiss courts over these privacy concerns.230 Google has
stated that they will comply with a final Swiss judicial decision, but this decision is unlikely to
come down until December 2010.231 Until that decision is final, Google will not be able to post
any more images.232 But, Google and Thür have reached a temporary agreement that allows
Google to continue capturing images with a lower camera until a final decision is released.233
VIII. The European Model of an Agency Responsible for Protection of a Right to Privacy is
Correct
American and international protection of privacy through litigation is less efficient and
consistent than European privacy protection. Since American privacy law is state-based law,
there will always be some inherent inconsistency unless the issue of privacy. This does not mean
27 that privacy protection must remain inconsistent and inefficient. The creation of an agency to
monitor and somehow regulate privacy would help both the efficiency and consistency of law in
any nation’s courts. Furthermore, privacy regulation would be even more consistent and efficient
if international agencies or agreements set the level of privacy protection for the international
community.234
Consistency would improve because there would be a more central body deciding what is
an invasion of privacy. Although this creation of a privacy official could potentially raise
concerns about overprotection of content, this outcome of overprotection is not absolutely
necessary.235 The American government or the international community could create a privacy
officer that can regulate privacy issues and concerns as they arise, but these governments would
not need to provide the officer the potential of becoming an information czar. These
governments could create an officer whose primary responsibility would be that of consultation
and the power to bring claims in local courts like Switzerland has done.236 Although individual
courts would still make final decisions, courts would likely become more ready to accept a claim
filed from the privacy officer. Additionally, courts would likely receive less frivolous claims
because the officer would have responsibility of making sure only cases of merit reach litigation.
This filtration process would likely give more weight to privacy claims and make courts hear
right to privacy cases with less skepticism.
Not only would the consistency of privacy decisions assist courts and private citizens, it
would be of a great aid to companies with service potentially conflicting with the right to
privacy. A level of consistency makes compliance cheaper for a company because it is able to
remain in one model.237 Another benefit that would arise is closely be related to the principal of
consistency: predictability. Companies would be able to consult with a privacy officer, like in
28 England, before any action to determine whether the officer finds an action to be an invasion of
privacy before anything is committed to the process.238 This predictability would be
tremendously advantageous to corporations that potentially face a confrontation with the right to
privacy because they could save money by creating services that are free from the likelihood of
lawsuits or wasted investment due privacy concerns.
Efficiency would also be greatly improved by the appointment of a privacy officer
because the responsibility for privacy claims would no longer be on individual citizens. Citizens
often do not have the money or expertise to know when to bring a proper claim. The officer
should be able to bring claims both on his own initiative or through referral from private citizens
like the privacy officer in Switzerland.239 This would allow American law to provide actual
privacy protection without having to promulgate many elements intended to reduce the number
of frivolous claims that have arguably led to the ineffectiveness of American privacy law.240
Therefore, the creation of a privacy officer would allow courts to enforce a more reasonable right
to privacy without opening the floodgates of litigation improving both efficiency for courts and
individuals.
IX. Conclusion
Although the creation of a privacy officer would require much effort, the reward would
be great. This is true of either an American privacy officer or of an international privacy officer.
Although there may be some resistance from organizations out of fear of being heavily censored,
the office could be created in such a way that it improves consistency and efficiency without
unduly limiting the material that can be captured or published. Eventually, the creation of this
position would save money for individuals through saving them the cost of litigation, save
29 money for companies by providing consistency with one standard, and save money for courts by
reducing the number of potentially frivolous lawsuits.
1 For a full history, see generally Fred Cate, Privacy in the Information Age (1997).
2 For more information read the short seminal article. Samuel Warren and Louis Brandeis, The
Right to Privacy, 4 HARV. L. REV. 193 (1890).
3 Id. at 193.
4 Id.
5 Id.
6 Id.
7 Id.
8 Id. at 199.
9 Id. at 200-01.
10 Id. at 216.
11 Id.
12 Id.
13 Id. at 195.
14 Id. at 217.
15 Des Butler, A Tort of Invasion of Privacy in Australia?, 29 MELB. U. L. REV. 339, 342 (2005)
available at http://www.austlii.edu.au/au/journals/MULR/2005/11.html#Heading71 (citing
Roberson v Rochester Folding Box Co., 171 NY 538 (1902), effectively overruled by 1903 NY
Laws 132 §§ 1–2, replaced by NY Civ Rights Law §§ 50–1 (2000) making an invasion of
privacy both a tort and a misdemeanor.)
30 16 Id. (citing Pavesich v New England Life Ins. Co., 122 Ga 190 (1905)). For a detailed
explanation of the impact left behind by that Georgia court see Jefferson James Davis, An
Enforceable Right of Privacy: Enduring Legacy of the Georgia Supreme Court, 3 J.S. LEGAL
HIST. 97 (1994).
17 RESTATEMENT OF TORTS § 867 (1939). Today, most, if not all, United States jurisdictions
have acknowledged a common law right to privacy in one form or another: Geoff Dendy, The
Newsworthiness Defense to the Public Disclosure Tort (1996) 85 KY. L. J. 147, 147.
18 Butler, supra note 15 (quoting P Allan Dionisopoulos and Craig R Ducat, The Right to
Privacy: Essays and Cases 20 (1976)).
19 See generally Claire Cartwright-Hignett, The Right to Privacy: A Right Without a Remedy,
MONDAQ, Oct. 9, 2009 available at
http://www.thefreelibrary.com/The+Right+To+Privacy:+A+Right+Without+A+Remedya0209360926.
20 Maya Ganguly, Private Pictures, Public Exposure: Paparazzi, Compromising Images, and
Privacy Law on the Internet, 26 WIS. INT’L L. J. 1140, 1147 (2009) (citing generally to
International Privacy, Publicity and Personality Laws (Michael Henry ed., 2001)).
21 Some of the countries that recognize privacy laws include Argentina, Australia, Austria,
Belgium, Brazil, Canada, Denmark, the Republic of Ireland, Finland, France, Germany, Greece,
Iceland, India, Italy, Japan, the Netherlands, New Zealand, Norway, Portugal, Singapore, South
Africa, Spain, Sweden, Switzerland, and the United Kingdom among other countries. Id.
22 Id. (citing Robert Gellman, Conflict and Overlap in Privacy Regulation: National,
International and Private, in Borders in Cyberspace 255 (Brian Kahin & Charles Nesson eds.,
1997)).
31 23 Id. at 1147-48 (citing Convention for the Protection of Human Rights and Fundamental
Freedoms, Preamble, Nov. 4, 1950, available at
http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B4575C9014916D7A/0/EnglishAnglais.pdf. See also Andrew T. Kenyon & Megan Richardson, “New
Dimensions in Privacy: Communications, Technologies, Media Practices and Law”, in New
Dimensions in Privacy Law: International and Comparative Perspectives 1-2 (2006)).
24 Council of Europe, Convention for the Protection of Human Rights and Fundamental
Freedoms, art. 8, Nov. 4, 1950, available at
http://conventions.coe.int/treaty/EN/Treaties/html/005.htm.
25 Id.
26 Id. at art. 10.
27 Id.
28 Id.
29 This was apparent through their adoption of the Fourth Amendment of the United States
Constitution. U.S. CONST. amend. IV.
30 Griswold v. Connecticut, 381 U.S. 479 (1965). In that case, Justice William O. Douglas in
the majority opinion postulated that the right to privacy was actually created in the Constitution
due to “emanations and penumbras” of the Third, Fourth, Fifth, and Ninth Amendments. This
theory was not accepted by all Supreme Court Justices at the time, and, in fact, the opinion most
cited from that case is actually Justice John Marshall Harlan II’s concurrence that states that the
right to privacy is created from substantive due process rather than constitutional creation.
31 Ganguly, supra note 20 at 1149 (quoting International Privacy, Publicity and Personality
Laws 437 (Michael Henry ed., 2001).
32 32 Id.
33 Jeffrey B. Ritter, Benjamin S. Hayes, & Henry L. Judy, Emerging Trends in International
Privacy Law, 15 EMORY INT’L L. REV. 87, 90 (2001).
34 The data protection laws did have some differing motivations and goals but similar in their
protection of data concerning the private nature of individuals. Sweden adopted The Data Act of
1973. The United States adopted The Privacy Act of 1974. 5 U.S.C. §552a. Germany adopted
The Federal Data Protection Act. France adopted Law No. 78-17 of Jan. 7, 1978 Journal Officiel
de la République Française [J.O.][Official Gazette of France], Jan. 7, 1978; Id. at 90-91.
35 Id.; Convention for the Protection of Individuals with Regard to the Automatic Processing of
Personal Data, Europe. T.S. No. 108, opened for signature Jan. 8, 1981, The Council of Europe
available at http://conventions.coe.int/Treaty/en/Treaties/Html/108.htm; Guidelines Governing
the Protection of Privacy and Transborder Data Flows of Personal Data, O.E.C.D. Doc. C(80) 58
(Final), adopted Sept. 23, 1980, reprinted in 20 I.L.M. 422 (1981).
36 Ritter, supra note 33 at 91.
37 Cartwright-Hignett, supra note 19.
38 For a full history of Google and its services see Google: Corporate History available at
http://www.google.com/corporate/history.html.
39 Id.
40 Id.
41 Id., Margaret Kane, Google Finds Its Map Service, CNET NEWS, Feb. 8, 2005, available at
http://news.cnet.com/2100-1024_3-5567274.html.
42 See Jon Udell, Google Maps Pushes the Envelope, INFOWORLD, Feb. 18, 2005, available at
http://www.infoworld.com/d/architecture/google-maps-pushes-envelope-841.
33 43 Google Maps Give Fresh Perspective: Photographs of North America's Most Significant
Landmarks and Locations, Including the Grand Canyon, Alcatraz and Mount Rushmore Are
Being Given a Fresh Perspective Thanks to a Tool by Google, BBC NEWS, Apr. 17, 2005,
available at http://news.bbc.co.uk/2/hi/technology/4448807.stm; Google Corporate History supra
note 38.
44 Google Corporate History supra note 38.
45 Posting of Bill Kilday, Google Earth Product Marketing Manager, Cover the Earth, available
at http://googleblog.blogspot.com/2005/06/cover-earth.html (June 28, 2005, 07:33:00).
46 Google Corporate History supra note 38.
47 Id.
48 See Udell, supra note 42.
49 Id.
50 Associated Press, Google Earth Worries Governments, FOX NEWS, (Oct. 18, 2005) available
at http://www.foxnews.com/story/0,2933,172621,00.html.
51 Id.
52 Id.
53 Id.
54 Id.
55 Id.
56 Id.
57 Rahul Bedi, Mumbai Attacks: Indian Suit Against Google Earth Over Image Use By
Terrorists, TELEGRAPH.CO.UK, Dec. 9, 2009 available at
34 http://www.telegraph.co.uk/news/worldnews/asia/india/3691723/Mumbai-attacks-Indian-suitagainst-Google-Earth-over-image-use-by-terrorists.html.
58 Id.
59 Google Earth Worries Governments, supra note 50; Danielle Belopotosky, Google Satellite
Imaging Software Raises Terrorism Concerns, GOVERNMENT EXECUTIVE (Aug. 24, 2005)
available at http://www.govexec.com/dailyfed/0805/082405td2.htm.
60 Although the armed conflict between North and South Korea ended with a signed armistice
on July 27, 1953 there has been no official peace treaty. North and South Korea did sign a nonaggression agreement in 1991, but the concern of military action has not been extinguished.
Recently, their relationship has again become inflamed. See IANS, North Korea Threatens South
Korea with “Holy War", THANDIAN NEWS, Jan. 15, 2010, available at http://www.thaindian.com.
61 Jemima Kiss, News Round-up: Spot the Stealth Bomber Courtesy of Google Maps,
JOURNALSIM.CO.UK, Jan. 6, 2005, available at
http://www.journalism.co.uk/2/articles/51397.php.
62 Richard Meusers & Frank Patalong, Schöner spionieren mit Google, DER SPIEGEL, May 26,
2005, (translated as Beautiful Spy with Google) available at
http://www.spiegel.de/netzwelt/web/0,1518,357512,00.html.
63 Id.
64 Id.
65 Id.
66 Google Earth Worries Governments, supra note 50.
67 Id.
68 Belopotosky, supra note 59.
35 69 Id.
70 Id.
71 Id.
72 Id.
73 Id.
74 Id.
75 Google Corporate History, supra note 38; Juan Carlos Perez, Google Improves Maps With
Street Views, Miniapps, PC WORLD, May 29, 2007, available at
http://www.pcworld.com/article/132344/google_improves_maps_with_street_views_miniapps.ht
ml.
76 Perez, supra note 75.
77 Carrie Ann Skinner, Google Maps to Offer Drivers Street View Photos, PC WORLD, Apr. 30,
2008, available at
http://www.pcworld.com/article/145348/google_maps_to_offer_drivers_street_view_photos.htm
l?loomia_ow=t0:s0:a41:g2:r1:c0.317274:b23490244:z0.
78 Google Maps Behind the Scenes: In the Beginning available at
http://maps.google.com/intl/en_us/help/maps/streetview/behind-the-scenes.html#beginning
79 Id.
80 Id.
81 For images of the camera assembly, the “Trike,” a typical car, and the original system of
taking photographs using the first generation Street View van. See id.
82 Many ancillary services use Google’s Street View Service, their own Google-like photocapture device, or some combination of them both to implement. See, e.g., Karagos, available at
36 http://karagos.com/post/114229575/yellow-bird; View At, The World in Panoramic, available at
http://viewat.org/.
83 This article will later categorize complaints by country and discuss various reactions by the
national governments to these concerns.
84 See, e.g., John Cooper, Streets Ahead of the Law: Does Google’s “Streetview” Compromise
Stretch the Boundaries of Privacy?, NEW LAW JOURNAL, Apr. 2, 2009, available at
http://www.newlawjournal.co.uk/nlj/content/streets-ahead-law.
85 Id.
86 Id.
87 Id.
88 Id.
89 Id.
90 Id.
91 Id.
92 See id.; for an example of some of the reasons behind complaints there is an article that is
good compilations of numerous complaints made in the United Kingdom. Sarah Judd, Google
Street View Arrives at Teeside: Has Its Eye on You … But Not Everyone is Happy, EVENING
GAZETTE (UK), April 9, 2009 available at http://www.gazettelive.co.uk/news/teessidenews/2009/04/09/google-street-view-arrives-on-teesside-84229-23350847/.
93 Judd, supra note 92.
94 Id.
95 Id.
96 Id.
37 97 Id.
98 Id.
99 Id.
100 Id.
101 Id.
102 Id.
103 Freddie Whittaker, Staunton Man Dubs Google Streetview “An Invasion of Privacy:” Has
Google Street View Arrived in Gloucestershire?, GLOUCESTER CITIZEN, May 13, 2009 available
at
https://web2.westlaw.com/Find/default.wl?cite=2009+WLNR+9255534&rs=LAWS2.0&vr=1.0.
104 See, e.g., John Armstrong, Emma Burnett, & Sarah Lloyd Data Protection Concerns Over
Google’s Street View Service, MONDAQ, April 3, 2009, available at
https://web2.westlaw.com/Find/default.wl?bhcp=1&cite=2009+WLNR+6285297&rs=LAWS2.0
&strRecreate=no&sv=Split&vr=1.0.
105 Id.
106 Id.
107 Id.
108 Id.
109 Data Protection Act, 1998 Eliz. II available at
http://www.opsi.gov.uk/Acts/Acts1998/ukpga_19980029_en_1
110 Id. §1(a).
111 Armstrong, supra note 104; Data Protection Act, 1998 Eliz. II Part II § 7(1)(a).
38 112 Data Protection Act, 1998 Eliz. II Part III § 17(1). The requirement of the register are listed
in a different section of the Data Protection Act. Data Protection Act 1998 Eliz. II Part III § 19.
113 Data Protection Act, 1998 Eliz. II Part II § 7(2).
114 Armstrong, supra note 104.
115 Id.
116 Id.
117 See id.
118 Whittaker, supra note 103.
119 Id.
120 Armstrong, supra note 104.
121 See typical images for an example of the blurred photographs and the degree of ability to
recognize individuals. See, e.g., Barry Schwartz, Google Updates Earth Imagery & Begins to
Blur Faces, SEARCH ENGINE LAND (May 14, 2008) available at
http://searchengineland.com/google-updates-earth-imagery-begins-to-blur-faces-13995. Even
the United Kingdom’s Information Commission’s Office has stated “blurring someone’s face is
not guaranteed to take that image outside the definition of personal data. Even with a face
completely removed, it will still be entirely likely that a person would recognize [sic] themselves
or someone close to them.” Dave Evans, UK Information Commissioner Rules Against PI in
Favour of Google Street View, PRIVACY INTERNATIONAL, April 13, 2009, available at
http://www.privacyinternational.org/article.shtml?cmd[347]=x-347-564268.
122 Id.
123 Judd, supra note 92.
39 124 See e.g., Shqeirat v. U.S. Airways Group, Inc., 515 F. Supp. 2d 984, 998 (D. Minn. 2007)
(finding that a temporary posting of a police report with the social security number was sufficient
to state a claim of an invasion of privacy); Michaels v. Internet Entertainment Group, Inc., 5 F.
Supp. 2d 823, 840 (C.D. Cal. 1998) (finding that if there had been any dissemination of a sex
tape even temporarily, there would have been an availability of a claim for invasion of privacy
for publication of private facts). This point is even more pressing in European countries, because
American jurisprudence standards for the protection of right to privacy is more relaxed. See
Francesca Bignami, European Versus American Liberty: Comparative Privacy Analysis of AntiTerrorist Data Mining, 48 B. C. L. REV. 609, 610 (2007) (“…American law is so much more
complacent than European law…”)
125 See Whittaker, supra note 103; Judd, supra note 92.
126 Navteq already has a service similar to Google Street View that it is currently implementing.
Wilson Rothman, Suck It, Street View, Navteq Maps the World in 3D…With Lasers, GIZMODO,
Jan. 8, 2010, available at http://gizmodo.com/5444060/suck-it-street-view-navteq-maps-theworld-in-3d-with-lasers.
127 The image is permanently available on Der Spiegel’s website. Meusers, supra note 62.
Google replaced the image posted on Der Spiegel’s website with a more current image and now
has a current image. Google Maps, Plant 42 near Palmdale, CA available at
http://maps.google.com/maps?q=Plant%2042%20in%20Palmdale,%20California&ll=34.637382,
-118.082020&spn=0.005397,0.007832&t=k&hl=en (last visited Jan 28, 2010).
128 Many of these websites host their own images and have images with unblurred faces or other
potentially offensive images. For instance, one website has multiple images with faces captured
completely unblurred including several images that are likely embarrassing to the individual
40 captured, such as an image of a man leaving a strip club with his face plainly visible and an
image of sunbathing women. Stan Schroeder, Top 15 Google Street View Sightings,
MASHABLE: THE SOCIAL MEDIA GUIDE (May 31, 2007) available at
http://mashable.com/2007/05/31/top-15-google-street-view-sightings/. Also there are many
websites that are totally devoted to publishing interesting and humorous images captured by
Google Street View. See, e.g.,The Best Google Street View Sightings, available at
http://www.gstreetsightings.com/ (last visited Jan. 28, 2010); Street View Fun: Funny Google
Maps Street Views, available at http://www.streetviewfun.com/ (last visited Jan. 28, 2010).
129 Armstrong, supra note 104.
130 Id.
131 See Chris Williams, Street View Nod Prompts Call for Privacy Watchdog Reform: ICO
Under Fire, THE REGISTER (UK), Apr. 24, 2009, available at
http://www.theregister.co.uk/2009/04/24/ico_privacy_international/.
132 Id.
133 Boring v. Google, Inc., 598 F. Supp. 2d 695, 698 (W.D. Penn. 2009) (affirmed in part and
overruled on other grounds by Boring v. Google, Inc., No. 09-2350, 2010 WL 318281, *3 (3d
Cir. 2010) (affirming the district court’s dismissal of claims for invasion of privacy, unjust
enrichment, injunctive relief, and punitive damages, but reversing and remanding the claim of
trespass)).
134 Id.
135 Id.
136 Id.
137 Id.
41 138 Id.
139 Id.
140 Id.
141 Id.
142 The Restatement of Torts expressly states that these claims will overlap. RESTATEMENT
(SECOND) OF TORTS § 652A COMMENT D.
143 Although these torts are based on state law, the Restatement of Torts has a standard that
most states apply to some degree, even if some states add additional elements or read certain
elements in different manners. Most notably, many courts, like the Illinois Appellate Court have
adopted an anguish and suffering element that is not present in the Restatement. RESTATEMENT
(SECOND) OF TORTS § 652B (Intrusion upon seclusion), 652D (Publicity given to private facts);
See, e.g., Schiller v. Mitchell, 828 N.E.2d 323, 328 (Ill. App. Ct. 2005).
144 Boring, 598 F. Supp. 2d at 699-700.
145 The court begins to list the elements but stops to discuss the offensiveness requirement. Id.
146 Id.
147 Id. (quoting Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 621 (3d Cir.1992) (“Liability
attaches only when the intrusion is substantial and would be highly offensive to ‘the ordinary
reasonable person.’”).
148 Id.
149 Id. at 699.
150 Id. at 700.
151 Id.
152 Id.
42 153 Id.
154 Id.
155 Id.
156 Id.
157 See id.
158 See id.
159 Id.
160 See id.
161 Id.
162 Id.
163 Id.
164 There are numerous webpages that either post the information or link to other websites that
contain the personal information even in cases that might be more private in nature. See e.g.,
Adam Frucci, Dude Drops His Kindle 2, Convinces Amazon to Replace It and Pay Him $200 for
His Troubles, GIZMODO, Oct. 20, 2009, available at http://gizmodo.com/5385918/dude-dropshis-kindle-2-convinces-amazon-to-replace-it-and-pay-him-200-for-his-troubles; Joshua
Topolsky, Jury Finds Taser Accountable for Man’s Death, Awards $6m Settlement to Family,
ENGADGET, June 11, 2008, available at http://www.engadget.com/2008/06/11/jury-finds-taseraccountable-for-mans-death-awards-6m-settlem/.
165 Boring, 598 F. Supp. 2d at 700.
166 Id.
167 Id.
168 Id.
43 169 Id.
170 Id.
171 Id.
172 Id.
173 Id.
174 The court did add a footnote that stated that they believed that the images were not private
facts, because most of the information was available in tax records and preexisting internet
search engines. The court stated that even if the information was first disclosed by Google it
would not be private because the Restatement states “when the publicity ceases to be the giving
of information to which the public is entitled, and becomes a morbid and sensational prying into
private lives for its own sake.” Id. (citing RESTATEMENT (SECOND) OF TORTS § 652D COMMENT
H).
175 Id.
176 See id.
177 See,e.g., id.; New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
178 See Boring, 598 F. Supp. 2d at 700.
179 Any statute or judicial decisions that contain the reasonable person standard may have their
own interpretations, but for an example of the change in contracts towards the use of an objective
reasonable person standard passing to the jury See, e.g., Larry Dimatteo & Saint Thomas
Aquinas, The Counterpoise of Contracts: The Reasonable Person Standard and the Subjectivity
of Judgment, 48 S. C. L. REV. 293 (1997).
180 See Boring, 598 F. Supp. 2d at 700 but see Rafferty v. Hartford Courant Co., 416 A.2d 1215
(Conn. Super. Ct. 1980) (stating that in cases dealing with an invasion of privacy through
44 publication of private facts the question of what is “ ‘highly offensive to a reasonable person’ is
for a jury to decide.”).
181 See Boring, 598 F. Supp. 2d at 768.
182 See id.
183 RESTATEMENT (SECOND) OF TORTS § 652D; see also Alvarado v. KOB-TV, L.L.C., 493 F.3d
1210, 1220 n. 9 (10th Cir. 2007) (“However, we observe that state law now defines torts
involving publication to take into account First Amendment restrictions announced by the
Supreme Court.”).
184 Although this element may not have been formally adopted as a separate element in all
jurisdictions, the Supreme Court stated that this requirement is one imposed by the constitution
and courts cannot punish a publisher when they have published information that the public would
be interested in. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-92 (1971).
185 See e.g., Virgil v. Time, 527 F.2d 1122 (9th Cir. 1975) (using the social balancing test as a
way to weigh all interests involved including the right to free speech of the defendant); Diaz v.
Oakland Tribune, Inc., 139 Cal. App. 3d 118, 131 (Cal. Ct. App. 1983) (using the appropriate
nexus test as a way to determine if the news reported is sufficiently related to a item of legitimate
public concern).
186 Virgil, 527 F.2d at 1122.
187 Diaz, 139 Cal. App. at 131.
188 Berkman Center for Internet & Society, Publication of Private Facts: Newsworthiness -Matters of Legitimate Public Concern, CITIZEN MEDIA LAW PROJECT, July 30, 2008 (stating
“courts generally are reluctant to second-guess the media, and they therefore take a very broad
45 view of newsworthiness”) available at http://www.citmedialaw.org/legal-guide/publicationprivate-facts.
189 See Boring, 598 F. Supp. 2d at 768.
190 Marc-André Miserez (translated by Justin Häne), Switzerland Privacy Watchdog Wants the
Country Taken Off Google Street View: Street View Privacy Guarantees Remain Fuzzy,
SWISSINFO.CH: SWISS NEWS WORLD WIDE, Aug. 24, 2009, available at
http://www.swissinfo.ch/eng/Street_View_privacy_guarantees_remain_fuzzy.html?cid=66944;
Switzerland was not the only country to ban Google Street View for a period of time. See, e.g.,
Mike Harvey, Greece Bans Google Street View, TIMES ONLINE (UK), May 13, 2009 available at
http://technology.timesonline.co.uk/tol/news/tech_and_web/article6276322.ece.
191 Federal Data Protection and Information Commissioner (FDPIC), Task: Data Protection and
Principle of Transparency (Freedom of Information), FEDERAL AUTHORITIES OF THE SWISS
CONFEDERATION, available at http://www.edoeb.admin.ch/org/00447/index.html?lang=en. (last
visited Feb 25, 2010).
192 Id.
193 Id.
194 Id.
195 SF Tagesschau, Hanspeter Dür: “Google Street View Has the Network”, SCHWEIZER
FERNSEHEN, Aug. 21, 2009, available at
http://translate.google.com/translate?js=y&prev=_t&hl=en&ie=UTF8&layout=1&eotf=1&u=http%3A%2F%2Fwww.tagesschau.sf.tv%2FNachrichten%2FArchiv%2
F2009%2F08%2F21%2FSchweiz%2FHanspeter-Thuer-Google-Street-View-muss-vomNetz&sl=de&tl=en
46 196 Miserez, supra note 190.
197 Id.
198 Id.
199 Daniel Pruzin, Privacy: Swiss Government Gives Google Time to Address Street View
Privacy Concerns, ELEC. COMMERCE & LAW REPORT NEWS (BNA), Sept. 2, 2009 available at
http://news.bna.com/epln/display/alpha.adp?mode=topics&lette.
200 See id.
201 Id.
202 Id.
203 Id.
204 Id.
205 Id.
206 See id.
207 Id.
208 Id.
209 Id.
210 Id.
211 Id.
212 Id.; In one situation Google shared the images with the Dutch government to find two twin
brothers that had mugged a fourteen-year-old teenager. Harro ten Wolde, Dutch Muggers Caught
on Google Street View Camera, REUTERS, June 19, 2009 available at
http://www.reuters.com/article/idUSLJ87085420090619.
213 Miserez, supra note 190.
47 214 Id.
215 Id.
216 Id.
217 Daniel Pruzin, Privacy: Swiss Agency Says Google Efforts to Protect Privacy Still Not
Sufficient, ELEC. COMMERCE & LAW REPORT NEWS (BNA), Sept. 23, 2009, available at
http://news.bna.com/epln/display/alpha.adp?mode=topics&lette.
218 See id.
219 Id.
220 Id.
221 Id. Compare this treatment of capturing private streets as something that is inherently more
offensive than capturing a public street to the finding in America that the capturing of private
streets even while trespassing would not be highly offensive to a reasonable person. See Boring,
598 F. Supp. 2d at 768.
222 See Swiss Agency Says Google Efforts, supra note 217.
223 Id.
224 Id.
225 Id.
226 Id.
227 Id.
228 Id.
229 Lester Haines, Swiss Roll Street View Into Court: Data Protection Supremo’s Patience Runs
Out, THE REGISTER, Nov. 13, 2009 available at
http://www.theregister.co.uk/2009/11/13/street_view_switzerland/.
48 230 Id.
231 Jason Rhodes, Google Will Abide by Swiss Street View Decision, PC MAG, Dec. 18, 2009
available at http://www.pcmag.com/article2/0,2817,2357311,00.asp.
232 Id.
233 Id.; Switzerland is not the only country to force the lowering of the camera. Japan forced
Google to lower their cameras by sixteen inches. Deepti Dhava, Google Street View in Japan
and Greece Faces Blockades From Privacy Advocates, E BRAND Z, May 14, 2009 available at
http://news.ebrandz.com/google/2009/2612-google-street-view-in-japan-and-greece-facesblockades-from-privacy-advocates.html.
234 The European Union has done this successfully and provided much more consistency for
companies which in turn allows them to be more efficient. See Jennifer LeClaire, EU Wants
Google to Delete Street View Images Sooner, YAHOO!, Feb. 26, 2010, available at
http://news.yahoo.com/s/nf/20100226/tc_nf/71891.
235 Individuals could be concerned about the potential of internet censorship like that seen in
China. See Tania Branigan, Google to End Censorship in China Over Cyber Attacks,
GUARDIAN.CO.UK, Jan. 13, 2010 available at
http://www.guardian.co.uk/technology/2010/jan/12/google-china-ends-censorship.
236 See FDPIC, supra note 191.
237 A change in a policy creates an issue with corporations. See LeClaire, supra note 234.
238 Armstrong, supra note 104.
239 See FDPIC, supra 191.
240 Boring, 598 F. Supp. 2d at 768.
49