The Borings v.
Google case ended today by a consent judgment in favor of
Plaintiffs against Google for trespass. Borings v.
Google, Western District of Pennsylvania, No. 08-cv-694.
This is not a
settlement. Google is now and forever an adjudicated
trespasser.
Google finally gave
up. Here is why. Some background is in order.
See
GoogleTrespass.com for a more detailed record of events.
Google's Street View
driver intentionally entered onto the Borings' land, 1,000 feet
(i.e, more than three football fields) off of the main
road on crunching gravel, passing by the Borings' "No
Trespassing Private Road" signage, surveilling and surveying
all the way up to the Borings' door. When in front of the
Borings swimming pool, with nowhere to go, Google only then
turned around, and returned and published the pictures
worldwide. On May 21, 2008, the Borings sued, among other
things, for trespass.
In February of 2009,
then-Magistrate Judge Amy Reynolds Hay dismissed all counts by
the Borings against Google, and "threw out" the case. Some
reports said she "kicked it to the curb."
Three years ago,
this was the first case of its kind, and the first regarding
Street View. It was filed at a time when Google could do
no wrong. This case started before international
investigations, WI-FI problems, social network privacy leaks,
etc.
At that time, the
Borings endured some ridicule for the "common-man" appearance of
their home. According to Gregg Zegarelli, attorney for the
Borings, who took over the case after Magistrate Judge Hay's
dismissal of the case, "I never understood the knee-jerk
perception that the propriety of surveilling someone's private
property was related to how pretty the home. The beauty of
the woman has nothing to do with the act of a Peeping Tom.
All women are entitled to be secure in their persons. The
act by Google was a violation."
Zegarelli continues
that he was also amazed that anyone, including the Courts, would
take a "what's the big deal" position. Says Zegarelli, "This
is about right and wrong. Maybe my client and I are
hopeless romantics, but, I suppose some people said the same
thing in 1950 about a male executive calling female staff,
'sweetie/honey,' or African-Americans just sitting a few seats
farther in the back of the bus."
According to
Zegarelli, the case came to his office and was assigned to his
staff associate attorney like any other simple trespass case.
"But, this case became something more important when the case
got dismissed," says Zegarelli. "My clients were
highly offended for Google's trespass, and, as an attorney, I
was highly offended for the Court's dismissal. I thought,
'the system cannot be broken that badly.' The Federal Courts
are teaching that it is okay for Google to enter our land, pass
'No Trespass Private Road' signage, and to publish the pictures
worldwide. If Google can do it, everyone can do it. The Courts are saying we can't do anything
about it. The Courts are supposed to help us, not make us
helpless."
Over a period of two
and one-half years, the Borings have been working to reverse the
effects of Magistrate Judge Hay's decision, seeking vindication
of their rights against Google.
Just to get a simple
trespass count to stick from Magistrate Judge Hay's decision,
the Borings had to file an appeal with the
United States Third Circuit Court of Appeals. The
Third Circuit reversed Magistrate Judge Hay's trespass ruling
and remanded the case back to Federal Court for the Western
District. According to the Rules, the case returned back
to Magistrate Judge Hay.
For almost one year,
the Borings were continuing to press for their rights again
before Magistrate Judge Hay, sticking to their position even in
light of continued motions by Google for sanctions.
According to Zegarelli, "Google kept seeking money sanctions.
Our position remains that Google does not need the money.
They were just being mean. To my clients' credit, they
stuck to their guns and fought back." In one brief
filed on May 19, 2010, says Zegarelli, "We even went so
far to tell Magistrate Judge Hay, 'Plaintiffs soldier forward.'"
The Borings would not back down.
With Magistrate
Judge Hay's recent passing away, the case was reassigned by
Chief Judge Gary L. Lancaster to
Magistrate Judge Cathy Bissoon. Magistrate Judge Bissoon is
a graduate of Alfred University, summa cum laude, and a
Harvard Law School graduate.
In less than 30 days
after reassignment to Magistrate Judge Bissoon, Google conceded
liability and entered a consent judgment in favor of Plaintiffs.
Game over.
With Google finally
conceding liability, Google's claim of an
"implied license given by general custom" to enter
our land was destroyed. According to Zegarelli, "Google
claiming it has a legal right by 'general custom' to enter
everyone's land to survey and surveil is just simply absurd.
It would be the end of private property as we know it.
Google was not going to fool Judge Bissoon, and it remains our
position that Google's claim was absurd, without merit and would
have been ultimately sanctionable by Judge Bissoon under Federal
Rule 11."
Immediately after
Magistrate Judge Bissoon's new assignment, Google tested by
filing another motion for protective order to stop Plaintiffs'
request for discovery, such as it did for Magistrate Judge Hay.
For months, Magistrate Judge Hay did not rule on the motion,
and, in fact, never ruled. However, when re-filed before
Magistrate Judge Bissoon, that same day, Magistrate Judge
Bissoon
DENIED Google's motion. The record shows that this
fact resulted in Google scrambling for a
new date for a status
conference so Google could now send in their New York legal
counsel to be in Pittsburgh in person.
The status
conference by Magistrate Judge Bissoon occurred on November 30,
2010. Plaintiffs' position was clear: it did not matter
what it took to get here, the past is over. It is not
about money, it is about Google conceding its absurd defenses
and completely and unconditionally surrendering and conceding
liability with no strings attached. Google must concede it
is an intentional trespasser.
With just one
meeting before Magistrate Judge Bissoon, Google fell on its
sword and conceded a judgment against it conceding it is an
intentional trespasser.
According to the
Borings, "That is one sweet dollar of vindication.
Google could have just sent us an apology letter in the very
beginning, but chose to try to prove they had a legal right to be on
our land. We are glad they finally gave up."
According to
Zegarelli, "Dogs and technologies may run wild for a time,
but, sooner or later, the law catches up with them and puts them
on a leash. Sometimes it just takes a while."
He continues, "We appreciate Judge Bissoon's management
of this case, based upon what is right. To me, the Borings
are heroes. As a matter of principle, they soldiered forward all
the way to the Supreme Court of the United States, and fought
until Google conceded it was wrong."
But, is the case
over? In a sense, maybe not.
According to
Zegarelli, there has been a significant record developed in this
case. Facts, laws, and arguments. Much of it has
been made available online at
http://www.GoogleTrespass.com. Zegarelli says, "Since
the case started, we have made our documents available online
for easy access to others. For years, people throughout
the world have downloaded these documents, including
governmental agencies. The goal is to help others defend
themselves and leverage their time and costs. Basically,
to give people perspectives and ideas. We believe that
this case has helped educate others on the risks of
technologies. No matter what anyone thinks about it, it is
just good to think about it. Increased awareness is good."
Zegarelli continues,
"We believe that this case helped make technology privacy and
trespass rights the high priority issue it is today. Consider
the WikiLeaks issue. Google warehouses a lot of
information in its private database. We now see that our
Government cannot even keep secrets. There is absolutely
and positively no reason to think
all of Google's information will not be misused someday.
Just look at Page 65a of our
Petition to the Supreme Court of the United States."
Zegarelli indicated
that he is now developing a law school course, "Borings v.
Google, Anatomy of a Lawsuit." According to Zegarelli,
the case started to vindicate the right to private property
based upon Google's trespass, then turned into a case for the
vindication of the right to a trial based upon the dismissal,
then turned into a case for the right just to have a proper
record of the proceeding. According to Zegarelli, "Magistrate
Judge Hay even refused to correct her minutes which indicate
that a conference occurred before her, even though she was not
even there
but sent her law clerk in her stead." "Really,"
says Zegarelli, "this case has it all."
Although Zegarelli
says that it is with some regret that these circumstances
actually occurred, they need to be talked about so that the system
improves.
This will make an
excellent law school course for prospective attorneys.
Step by step, what happened, how it happened, and issues
regarding why it happened. Is this an example of the
system working correctly, or incorrectly? Zegarelli says,
with Mrs. Boring being a school teacher, possibly she and Mr.
Boring, a computer programmer, could appear in the law school
classes to discuss their feelings and positions as a client.
The extensive record in this case is unique and historically
invaluable. Students and younger lawyers need to see how the world of
practicing law really works, says Zegarelli. Because this
case was resolved by a judgment against Google, rather than a
settlement, there is no confidentiality agreement. He
continues that this was probably a wild ride for the Borings, "The
Borings should write a book. I am sure it would make for
very interesting reading."
Contact
Gregg R. Zegarelli, email preferred.
