Google Inc. (“Google”) has filed a motion to dismiss a complaint by a Pittsburgh couple, Aaron and Christine Boring (“the Borings”), over Google’s alleged invasion of the Borings’ privacy through Google’s Street View service. Launched last May, Street View provides a navigable, 360-degree view from the streets of many U.S. cities, including Pittsburgh. 

The Borings have sued for invasion of privacy, trespass, negligence and unjust enrichment and seek damages from mental suffering and diminished property value. In their complaint, the Borings argue that Google recklessly invaded their reasonable expectation of privacy by trespassing onto their property, passing a sign reading “Private Road, No Trespassing.” From the Borings’ driveway, Google captured exterior images of the Borings’ residence and swimming pool that Google made visible with Street View.

In Google’s motion to dismiss, Google argues the invasion of privacy claim is lacking because the Street View service images must be considered in the context of what others can already view from the street. That is, any delivery person, service provider, or guest who turns around in the Borings’ driveway sees the same view as from the Street View point of view. Only if there had been a barrier or closed gate would a reasonable expectation of privacy possibly arise. In introducing this argument, Google quotes commentary from the Restatement (Second) of Torts (relating to invasion of privacy torts) that

                [c]omplete privacy does not exist in this world except in a desert, and anyone who is not a hermit must expect and endure the ordinary incidents of the community life of which he [or she] is a part.

As to the trespass issue, Google points to the privilege of consent that may be implied from custom. One such custom is driving up to a driveway or approaching the front door of a private home “absent a locked gate or other express notice not to enter.”  

Interestingly, the Borings filed a lawsuit rather than using the Street View service’s removal option; similar photos of the Borings’ house were already publically available online; and, the Borings have garnered more attention by proceeding with a lawsuit rather than removing the images. 

Proskauer Rose summer associate David Neinstein contributed to this report.