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GoogleTrespass.com

 

The Wisdom of Aesop: There was once a young porcupine who wanted a home, so he asked some other animals who lived in a cave if he could move in.  One of the elders said, "no," but the young ones ridiculed the elder and said there was plenty of room.  And, they said, it would be fun.  Indeed, it was fun for a while.  But, over the years, the porcupine grew larger, and his quills began to prick the other animals, injuring them. So, they demanded the porcupine to leave.  "No thank you, very much," said the porcupine. "I am quite comfortable exactly where I am, but you can leave and find a new home for yourself." 

By not thinking ahead to the potential power of something, it becomes too late, and we embrace the thing of our undoing.  Wisdom is nothing but thinking ahead.  To see the thing from the seed.

Aaron and Christine Boring v. Google

Thank you for your interest in this important case.
This case is a log of the journey required to protect a property interest
by a United States citizen in the United States against Google.

[Read U.S. 3rd Circuit excerpt] [Read U.S. Supreme Court excerpt]

Initial Press Release
Wall Street Journal Comments (focus on why Google conceded)
PCWorld Comments (focus on consent judgment v. settlement)

AOL Comments (focus on damages and legislation)

The Facts.

The Borings' home is on a private road, 1,000 feet (i.e., three football fields) from the main road. The main road is paved.  The private road is unpaved crunching gravel. The mailbox is at the main road junction 1,000 feet from the home, not on the home.  (That is, even the mail carrier does not need to enter the private road).

There was a clearly marked "No Trespassing Private Road" sign. The "trained" Google driver intentionally drove past the mailbox, and intentionally went past the "No Trespassing Private Road" sign, with tires crunching all the way.  At the 500 foot mark, looking forward up the graveled driveway for about another 500 feet, you can see a home all by itself.  By continuing forward, tires crunching, there is nowhere to go but to drive into the home, the pool or the garage.  Did Google turn around 500 feet away?  No.  Google's driver did not turn around at the 500 foot mark.  Did Google turn off the 6 roof-top digital cameras?  No.  Google did not turned off the cameras.  Google kept coming, tires crunching, right up to the windows and doorstep of the home, 1,000 feet from the paved highway.  Google did not even turn off the camera when turning around directly in front of the garage.  Did Google remove the images before publication?  No.  Google just published the pictures worldwide anyway. 

Why does Google not remove the pictures?  Because it saves money by not removing the pictures, and it makes more money with more images in its database.  There is a very good reason Google has so much money.  Their wealth is piled upon our backs.  We use our time and equipment to cleanse their database.

Did Google admit being wrong?  No, at first and for more than two years after.  For over two years, Google refused to admit that it was wrong.  Here is Google's exact language:

[A] 'private road' sign at the top of their street standing alone is insufficient to negate Google's privileged and trivial entry upon Plaintiffs' property.

http://www.zegarelli.com/Cases/Borings v Google/Exhibit A Brief in Support of Motion to Dismiss 4.pdf, read U.S. Supreme Court excerpt.  Google argued it had an implied legal right to enter land.  See below.  This is the truth you do not see in the media. Google said we needed guard dogs and fences surrounding our property to stop them, "Private Road No Trespassing" signs were not enough.  Forget media spins.  This is what Google buries in court papers that people tend not to see or read through carefully. 

Google said that its conduct is not a "mistake," but that it has a legal right to be on the land. This was not an accident; Google's acts were conscious and intentional because Google asserted the law allows it to enter in spite of "Private Road No Trespassing" signs. For a company with virtually unlimited money, traversing the earth and air with cameras, this is Google's position -- in court papers that people tend not to read and gets spinned by Google itself, a media giant.

This is why the Borings could not give up until Google was an adjudicated intentional trespasser.  The defenses were too absurd to accept, and those defenses needed to be destroyed forever.  Google was defeated by the Borings because they refused to give up.

Nominal Damages.  Regarding damages, to persuade casual listeners, Google spins its "intentional trespasser" judgment into a statement that the $1 is a reflection of social value or importance. That is simply not true.  One dollar is the symbolic legal "nominal" damage when actual compensatory damages do not exist or are not claimed.  For example, prior to the congressional Civil Rights Act legislation that grants penalties, damages, costs and fees, a person racially discriminated against might only have $1 nominal damages, or $1.50 compensation damages for a refund of a bus ticket.  If that sounds wrong to you, that is the point.

Google trespasses and then claims there is no compensatory damages, just like the bus company example could do before Congressional Civil Rights Legislation.

Nominal damages exist exactly to allow cases to proceed to vindicate a legal right even if money is not the issue.  Nominal damages are non-judgmental, they are formalistic.  This is exactly why we absolutely need federal congressional legislation in this area, such as in other countries.  Google got its free bite, and the Borings bear the litigation scar.  That is okay.  Now, it is absolutely clear that Congress must statutorily grant penalties, attorneys fees and costs to someone trespassed upon, since the courts do not have the power to do so.  We worked hard and did a lot of good for the next mom and pop, but the next mom and pop should be able to claim a violation of a statute, and get penalties, statutory damages, attorneys fees and costs.

Legislation.  Google has increased its congressional lobby budget 11% this year to prevent this from happening.  Call your state and federal representatives and senators before it is too late.

Google is a powerful worldwide social, technological and economic phenomenon.  The result of this case demonstrates the need for mandatory congressional legislation.  For example, if you are a senior citizen without a computer, how do you even know you have been trespassed upon by Google?  Google purposefully does not have community notices, television advertising, toll-free numbers or alternative ways to learn about your property and/or to remove the property from their database.  This is simply not fair.  Please call your Congressman and Senator and tell them to introduce and support legislation to constrain Google.  The identities of people should never be shown anywhere. 

In residential zoned communities, Google should not be able to show people on property, period.  For example, showing little children playing in a yard, and more particularly in bathing suits, is sufficient for a predator, irrespective of blurred faces.  Our judges have their addresses redacted from public record, but allow our children to be shown at home.  Google has the money and should pay have toll free numbers and television advertisements for people without computers to call.  If an image returns onto the site, there should be penalties.  (We have received many callers with off-today, on tomorrow situations, which leaves everyone insecurely wondering.) 

Please think ahead and contact your Representative Now.  https://writerep.house.gov/writerep/welcome.shtml.  Senators http://www.senate.gov/general/contact_information/senators_cfm.cfm

[Read U.S. 3rd Circuit excerpt] [Read U.S. Supreme Court excerpt]


These documents are for your convenience only.  These documents may have been modified or may be incomplete in some regards. For citing these cases, you are encouraged to obtain the filed versions in the exact form and format as filed.  The documents are public record.  To get started seeing the problem, consider reading the Petition for Rehearing En Banc below; that document identifies issues in the Third Circuit Opinion.
Western District Documents
(see below for pre-appeal filings)
U.S. Supreme Court/Appellate Court Documents: Third Cir. Explanation
  12-02-2010 Press Release    
  11-30-2010 END OF CASE: JUDGMENT AGAINST GOOGLE: Google concedes liability relinquishing their absurd defense that they "have an implied license by general custom" to enter land.  With Google finally conceding all liability for trespass, on the record, Plaintiffs are finally vindicated.  Google is an adjudicated as an intentional trespasser.  Case closed. Magistrate Judge Hay denied Plaintiffs trespass case and "threw out" the case by dismissal.  Plaintiffs fought two years through appeals of Judge Hay's decision, finally being vindicated by a reinstatement of the claim by the Third Circuit Court of Appeals.

Back at Federal Trial Court, Plaintiffs' case was reassigned from Magistrate Judge Hay to Magistrate Judge Bissoon. 

In less than 30 days from the date of Magistrate Judge Bissoon appointment, the case was settled. 

After the denial of their motion for protective order, and at the risk of Rule 11 sanctions claimed by Plaintiffs for Google's defense, Google was forced to forfeit its absurd position that it "has an implied license by general custom" to enter land.

Plaintiffs are thankful to Magistrate Judge Bissoon for her legal work in a final resolution of a judgment entered against Google. 

  11-08-2010 Status Conference reset for 11/30/2010 10:00 AM before Cathy Bissoon    
  11-08-2010 Google's requests new status conference date because of denial of their protective order motion   Google sought a protective order for discovery sought by Plaintiffs, including information regarding their procedures and use of data.  After their motion was denied, Google requested a change to the status conference date so that they could send in legal counsel from New York.
  11-05-2010 Google's motion DENIED by Magistrate Judge Bissoon   Magistrate Judge Bissoon DENIES Google's motion without prejudice and issues may be raised at status conference set for November 12, 2010
  11-05-2010 Google's (Renewed) Motion for Protective Order   Google Renewed its motion for a protective order.  SEE 5/13/2010.
  11-01-2010 ORDER REASSIGNING CASE. Case reassigned to Magistrate Judge Cathy Bissoon for all further proceedings. Magistrate Judge Amy Reynolds Hay no longer assigned to case. Signed by Chief Judge Gary L. Lancaster on 11/1/2010.   Magistrate Judge Amy Reynolds Hay died and case reassigned to Magistrate Judge Magistrate Judge Cathy Bissoon
  10-04-2010   Certiorari Denial  
* 07-19-2010 Motion to Vacate in Part, Order re to Correct, Clarify or Conform Record   Magistrate Judge Hay entered minutes into the record indicating that a conference was conducted "before" her, even though she was not in attendance, but sent her law clerk in her stead.
  06-10-2010   Case Number assignment and docketing notice Assigning U.S. Supreme Court No. 09-1475, filed June 1, 2010.
** 06-1-2010   Petition for Writ of Certiorari from United States Supreme Court (with exhibits); .htm version (exhibits omitted) Seeking the United States Supreme Court to review the Third Circuit Order.  See "Order Denying Rehearing of Third Circuit En Banc" below.
  05-24-2010 Plaintiffs' Second Request for Production   Because Google objected to discovery requests, Plaintiffs did not know that collection of Wi-Fi data was occurring.  Starting on May 20, 2010, Australia, Germany, Italy and the United States (FTC) started inquiries.  Accordingly, this set of requests also seeks whether Google collected other data while on Plaintiffs' property in addition to data resulting to a visual medium.
* 05-19-2010 Plaintiffs' Brief in Opposition to Google's Motion
  Exhibit A
  Exhibit B
  Plaintiffs argue against Google's official position that it has "implied consent given general custom" to enter Plaintiffs' land and acquire data.  Google claims that even Plaintiffs' "PRIVATE ROAD NO TRESPASSING" sign was not sufficient to stop it.  See bottom of Exhibit A.
* 05-13-2010 Google's Motion for Protective Order   See page 4.  Google absurdly claims it does not matter why it enters land.  It only tests for, e.g., a locked gate, guard dog, fence surrounding property.  Its right to enter is based upon "implied consent" and while on land Google claims it can surveil and collect data, and permanently record for worldwide publication, and can presumably acquire and record other data in addition to pictorial information.
*   Plaintiffs' Reply re Motion to Stay, htm; pdf   Google claims that Plaintiffs cannot sue for punitive damages and Plaintiffs cannot sue for compensatory damages.  Google says that Plaintiffs can sue for $1, but then served a "Rule 68 Offer" for $10 stating that Plaintiffs will have to pay all Google's costs if Plaintiffs win and vindicate their rights and recover $1, because it is less than $10.  See ¶8 and Exhibit 4 below.
    Google's Response to Motion to Stay    
*   Brief in Support of Motion to Stay Pending Supreme Court Petition
  Exhibit 1
  Exhibit 2
  Exhibit 3
  Exhibit 4
   
    Jury Demand    
    Google's Answer to Complaint    
*   Plaintiffs' First Set of Request for Admission   This document demonstrates the futility of Google's defense.  If you read the questions, and if Google would answer them, Google's case and defense would have been, in our view, dismissed with Rule 11 sanctions.  This is why Google objected to answering ANY of the questions; they could not open the door to any response.  See 5-19-10 document above, which is Plaintiffs' response to Google's objection to answering these questions.
    Plaintiffs' First Set of Request for Production    
    Plaintiffs' First Set of Interrogatories    
    Notice of Intention to Seek Stay    
    Scheduling Order (Deadline to Answer)    
    Scheduling Order (Schedule)    
    Parties' Proposed Scheduling Order    
      Order Denying Rehearing of Third Circuit En Banc: Full version .pdf. [In accordance with operating procedure, the decision of the Third Circuit was made by a panel of three judges.  The full court of the Third Circuit consists of nine judges.  In this case, one of the three panel members was sitting by designation although not an appointed Third Circuit Judge; this is not an unusual condition.  "En Banc" means the "full court."  Accordingly, seeking a rehearing "en banc" means that the Borings sought further consideration by the full Third Circuit Court of nine judges.]  The motion was denied.
*     Borings Petition for Rehearing of Third Circuit En Banc: Full version .pdf, htm version KEY DOCUMENT: This document isolates certain remaining issues for the appeal to the United States Supreme Court.
      Third Circuit Order Reinstating Case [Dismissal overturned, and case reinstated on trespass count.] Plaintiffs successful.  Case reinstated.  Case Reversed on Trespass Count, but not Privacy Count.  Accordingly, Plaintiffs continued the appeal process.
*     Borings Reply Brief: Full ver. .pdf; .htm version This is Plaintiffs' reply to Google.
      Google Response Brief: Full ver. .pdf; .doc version  
*     Appeal Brief: Full ver. .pdf; .doc version This is Plaintiffs' Opening Brief on Appeal to the Third Circuit
    Magistrate Judge Denial of Reconsideration (now reversed in part)    
    Plaintiffs' Reply: Full ver .pdf    
    Google's Opposition: Full version .pdf    
    Plaintiffs' Motion for Reconsideration: Full ver .pdf; htm ver. (no exhibit).    
    Magistrate Judge Opinion (now reversed in part)   This is the Order dismissing Plaintiffs case.  The Magistrate Judge effectively ruled that sitting on land in front of the home, past signage, is similar to satellite photography at 5,000 feet.  She states that because Google had not been sued before, being "viable" that Google's actions must be permitted.  She even "Googled" Plaintiffs' initial attorney.
         
         


Excerpt from Borings' Appellate Reply Brief:

But, let us take a step back and think about the effect of Google’s argument. The case was dismissed with Google physically sitting on the Borings’ driveway (1,000 feet from mailboxes and the public road junction) with no “street” in “view.” The reason [according to Google]:

The Borings, common people, have no gate [Google Br. 2], no fence surrounding the property or guard dog [1], the government took a picture [Google Br. 22] (now removed from its website) [2], the notice of the recorded deed is ineffectual [SA-17], Yahoo has aerial pictures from thousands of feet [SA-13], MapQuest has aerial pictures from thousands of feet [SA-15], Live Search has aerial pictures from thousands of feet [SA-16], airplanes take aerial pictures from thousands of feet [Google Br. 28], the “[Borings’] property is visible from the air” [Google Br. 8], “[Barbara Streisand] has taken no steps to preclude persons passing by in airplanes from seeing into her back yard.” [Streisand [3], P32:L14, Google’s Br., attached].

On these factors, who is safe? What property is safe? The Borings are just everyday people.

The Borings are not injured as a matter of law because they have not installed a fence and because they receive sunshine into their yard.

Must we become “hermits” not to be ogled?  Must we now concede the sun?

“The Borings' yard is visible from the air...” [Google Br. 8] [Streisand] has taken no steps to preclude persons passing by in airplanes from seeing into her back yard. [Streisand, p. 32:L14, emphasis supplied].

Amber waves of grain, guard dogs, fences and opaque domes.

Google’s presupposition is that Americans must have, and must plead, barriers of power to prevent entry. [Google Br. 2] Google blames the Borings, common people, for not fencing themselves in against Google, and uses aerial photography at 5,000 feet for the proposition that Google is rightful to be at on the Borings’ driveway.

Google’s requirement of a barrier fence is as illogical as arguing law-abiding citizens must incarcerate themselves from the criminals.

Through pleading rules, Google puts us at unhappy war with ourselves, mere words not being enough.  The idea of necessary gates and guard dogs is abhorrent to the principles of a free and civilized society, although, it is admitted that such things are necessary to defend against rodents and wild dogs.

We are not brutes.  Words should be enough.

___________________________

Freedom begins with the right to be left alone. Security in property is not an incidental right, it is a fundamental right — if not the seminal principle upon which the United States of America was founded. We know that technology and property rights are not irreconcilable, there just needs to be an incentive.

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

James Madison [called "Father" of the United States Constitution] “Memorial and Remonstrance,” in Rives and Fendall, Letters and Other Writings of James Madison, 1:163.

I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power, than by violent and sudden usurpations....This danger ought to be wisely guarded against.

James Madison. Jonathan Elliot, ed. The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 5 vols. 3:87. Philadelphia: J.B. Lippincott Company, 1901.


[1] Docket No. 11, Motion to Dismiss (first), pg. 2. [2] See, p. 6, infra. [3] Streisand v. Adelman, No., SC 077-257 (Super. Ct. Los Angeles Co. Dec. 31, 2003)

 [This excerpt was from the U.S. Third Circuit.  Read More: U.S. Supreme Court excerpt]

 

 
 

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