| |
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.
|
|
