Thursday, February 19, 2009

Opt Out Privacy

There's an interesting decision in the case of a couple suing Google for invasion of privacy:

A ruling issued Wednesday by Judge Amy Reynolds Hay in a Pennsylvania district court states that Google's Street View mapping service is not an invasion of privacy. Judge Reynolds has dismissed a lawsuit against the search giant and has denied a request for injunctive relief that sought to block Google from publishing Street View imagery.

The lawsuit was filed last year by Aaron and Christine Boring, who contend that Google violated their privacy when a Street View camera car drove past a "private road" sign in their driveway in order to take pictures of their house.

Google countered that there was already a public record photo of the house, filed by the county tax assessor's office, and said this proved that "complete privacy does not exist." Perhaps that's a point, altho I would argue strongly that being forced to file with the county is not the same thing as having a private enterprise drive up your road. This would be much like claiming that, because you get US mail, you should be forced to accept each and every stinking flyer that a car wash decides to litter your property with.
Here's where the argument gets interesting: Google claims (and they're probably right) that they protect privacy on an "opt out" basis, that if you ask them, they will eliminate your house from Street View.
Um, what?
It strikes me that privacy is a little like virginity: once you've lost it, you can't exactly ask for it back. If anything, then, privacy shouldn't be an opt-in right, but an opt-out right.
In other words, Google, no matter how benevolent or benign your purpose may be, it seems to me that the polite thing to do, particularly when it comes to driving onto someone's property, is to ask permission.
The judge's rationale for this boorish invasion by Google? In two words, utterly ridiculous:

Judge Reynolds sided with Google and concluded that the Street View service doesn't meet the criteria for an unlawful intrusion. Case law precedents define an actionable intrusion as one that causes "mental suffering, shame, or humiliation to a person of ordinary sensibilities." Reynolds doesn't believe that sufficient evidence was provided to demonstrate that Street View can cause such damage.

"While it is easy to imagine that many whose property appears on Google's virtual maps resent the privacy implications, it is hard to believe that any—other than the most exquisitely sensitive—would suffer shame or humiliation. The Plaintiffs have not alleged facts to convince the Court otherwise," the Judge wrote in the decision.

The Judge also pointed out that the Borings have not taken steps to have the images removed from Street View through Google's opt-out process and have, in fact, decreased their own privacy by drawing attention to themselves with the lawsuit. They did not file the suit under seal, which would have minimized exposure.

Judge Reynolds, now arguably the stupidest jurist in the States (privacy suddenly looks pretty good, Judge, don't it?), has clearly made a brutish and Neaderthalic interpretation of the law, very much akin to the rape victim being told, "well, hell, don't dress like that, beeyatch!"
Amy Reynolds has compounded the heartache that the Borings (intriguing name, by the way) now feel by basically telling them, "No no, you didn't read my mind and you got the wrong answer."
"Minimized exposure"? By filing a lawsuit, the Constitutional method of handling these things (unless you want us to fly to Google headquarters and picket or worse), the Borings availed themselves of the legal recourse open to them, but that recourse has been held against them because it wasn't perfect enough.
As for the whole case law precedent that "mental suffering, shame, or humiliation" must accompany an invasion of privacy, isn't the simple act of exposure a mental suffering? We're talking about a violation, severe enough that the Borings took it upon themselves to fight back. That act alone ought to qualify as evidence of a mental suffering, unless you are going to claim that somehow this couple is masochistic enough to take on one of the biggest frikkin' corporations in the world and is enjoying their moment in the spotlight.
Judge Reynolds, maybe you need to be back in traffic court!