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Technology & Entrepreneurial
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GOOGLE CASE:
JUDGMENT IN FAVOR OF PLAINTIFFS AGAINST GOOGLE

 

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.

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