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Boring v. Google, Inc.

United States Court of Appeals for the Third Circuit
362 F. App'x 273 (2010)
ELI5:

Rule of Law:

An unprivileged, intentional physical intrusion onto land possessed by another constitutes an actionable trespass, for which nominal damages may be awarded even if no actual harm is proven. However, photographing the exterior of a home from that property does not constitute an invasion of privacy as an intrusion upon seclusion unless the conduct is substantial and highly offensive to a reasonable person.


Facts:

  • Aaron C. Boring and Christine Boring resided on a property accessed by a private road in Pittsburgh.
  • The entrance to their road was clearly marked with a 'Private Road, No Trespassing' sign.
  • A vehicle operated by a representative of Google, Inc. drove up the Borings' private driveway to capture images for its 'Street View' program.
  • The Google vehicle took panoramic photographs of the Borings' residence, garage, and swimming pool.
  • Google did not obtain permission or authorization from the Borings before entering the property or taking the photographs.
  • Google subsequently published the imagery of the Borings' property on the internet via its Google Maps service.

Procedural Posture:

  • Aaron and Christine Boring sued Google, Inc. in the Court of Common Pleas of Allegheny County, Pennsylvania, a state trial court.
  • Google removed the case to the United States District Court for the Western District of Pennsylvania, a federal trial court, based on diversity jurisdiction.
  • The Borings filed an amended complaint.
  • Google filed a Rule 12(b)(6) motion to dismiss the amended complaint for failure to state a claim.
  • The District Court granted Google's motion and dismissed all of the Borings' claims.
  • The Borings moved for reconsideration, which the District Court denied.
  • The Borings, as appellants, appealed the District Court's dismissal to the United States Court of Appeals for the Third Circuit.

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Issue:

Does a complaint state plausible claims for trespass and invasion of privacy when it alleges a company's vehicle entered a private driveway marked with a 'No Trespassing' sign to take photographs for a public online mapping service?


Opinions:

Majority - Jordan, Circuit Judge

No, as to the invasion of privacy claim, but yes, as to the trespass claim. The complaint fails to state a claim for invasion of privacy because the alleged conduct is not highly offensive to a reasonable person, but it successfully states a claim for trespass because harm is not an element of the tort. For the invasion of privacy claim (intrusion upon seclusion), the conduct must be a substantial intrusion that is highly offensive to a person of ordinary sensibilities. Photographing the external view of a house from a driveway, a view accessible to any visitor, does not meet this high standard. The court reasoned that this act is arguably less intrusive than a knock on the door and does not become highly offensive simply because a photograph is taken. For the trespass claim, Pennsylvania law defines trespass as an unprivileged, intentional intrusion upon land. Harm is not a prerequisite for liability. Because the Borings alleged that Google entered their private property without permission, they have stated a plausible claim for trespass, for which they may recover at least nominal damages.



Analysis:

This decision clarifies the application of traditional torts to modern digital data collection activities. It reinforces the robust protection of real property rights under the tort of trespass, confirming that any unauthorized physical entry is actionable, regardless of damage. Conversely, it sets a high bar for invasion of privacy claims based on photographing property from a private vantage point, requiring that the conduct be 'highly offensive' to a reasonable person, not just subjectively unwanted. This distinction is critical for future cases involving drones, automated vehicles, and other technologies that may physically enter private property to gather data, suggesting that ancient property torts may provide a more reliable remedy than modern privacy torts in such scenarios.

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