Monday, June 02, 2008

Google vs. Privately Owned Community

This isn't really a story about Google, but I was tipped off by a tech-legal blogger about the story because of Google's involvement with the St. Paul suburb of North Oaks, Minnesota. The basic story boils down to (1) North Oaks residents actually own the roads in their town and have a trespassing ordinance, (2) Google violated that ordinance when it took photos of the town for its Street View program, (3) North Oaks city council requested the photos of the entire city be removed, (4) Google complied.

From a Public Relations standpoint, I have no argument with Google's decision... however, I do think there is a dangerous first amendment precedent waiting in the wings here. In Marsh v. Alabama the U.S. Supreme Court ruled that First Amendment activity was still protected in the town of Chickasaw, Alabama even though every square inch of the town was private property owned by the Gulf Shipbuilding Corporation. The company had baned religious leafleting and the Court said the company was the State in that situation and thus must abide by the First Amendment.

I think the situation in Chickasaw, Alabama is analogues to North Oaks, Minnesota... except, instead of a for-profit company owning the streets, individuals bound by their deeds through the North Oaks Home Owners Association own the streets. But the situation is otherwise the same in that a private entity is attempting to get around the State Action doctrine by abolishing the State. But in so doing, they create a new State in all but name, and thus under Marsh must allow First Amendment activities. There remains the question of whether taking photos from streets is a First Amendment activity, a question I am not immediately familiar with, although I believe it is protected.

Either way, I imagine Google complied for the same reason it complies with requests from private citizens... it doesn't have to under the law, but it does out of respect for privacy. My question now is what happens if a "citizen" of North Oaks, Minnesota writes to Google saying they wish to opt back into Street View?

4 comments:

Cliff Wells said...

From your Wikipedia cite:

"Each homeowner's property extends halfway into the street... [t]he City owns no property."

You claim that the homeowner's *association* owns the streets, but this appears to be untrue (the *members* of the association do). I think this seriously undermines your comparison, since there isn't a single owner that could be considered a "government" as in the Chickasaw case, only a loose coalition of individual owners.

Sean Kellogg said...

Sure, it's not perfectly analogues, I will grant you that. But loose coalition goes to far. The residents are bound by the deeds of their houses to the home owners association... they may NOT dissociated and live there. Such covenants run with the land and are generally upheld by the courts. Though, this one is so weird I honestly don't know what a court would decide here.

What I do know is that the association has the ability to adopt rules that apply to the inhabitants of that property... and I'm betting it even has the authority to grant easements onto those privately held roads. Which is beginning to sounds more and more like a state entity to me.

Cliff Wells said...

Point taken with regard to the strength of the coalition.

However, I think that if such a case were ever to make it to court it would come down to "reasonable expectation of privacy". The reason Google is able to do what it does with Street View is because they only take pictures of things that have no reasonable expectation of privacy. The front of your house and even your car are visible from a *public* area and therefore without any reasonable expectation of privacy. If they climbed a fence to get a picture of your back yard, then they would get into trouble pretty quickly.

The crux of the argument would likely come down to whether the streets in this community are *public* and therefore without expectation of privacy, but given the town's history as a gated community (i.e. definitively *not* public), and given that purchasers of said properties not only knew this but likely *chose* this community precisely because of this expectation of privacy, it seems unlikely that a court would see Google as having any right to encroach upon that privacy. Just as private clubs are allowed to have exclusionary rules that would be unconstitutional were they state-enforced.

I think a more productive approach (if I were Google and attempting to force the issue), would be to force a definition of "public". It's arguable that if the area is open to the general public (e.g. visitors can drive through and take pictures) then Google has those same rights (or rather, isn't encroaching on someone else's expectation of privacy). If people can take pictures of the community and post them on blogs or realty websites, then what Google does doesn't seem so novel or intrusive.

The argument is similar in spirit to yours, but seems a bit easier to argue (and probably has much more case law behind it, although I have no intention of verifying that ;-)

At the end of the day, I think Google is wise to simply side-step the issue. They have little to gain and it would likely end up being a public-relations nightmare.

Sean Kellogg said...

I think that's a perfectly fine way to argue the case, and a good lawyer would do both in their brief. Though I'm still fascinated by the idea of the community structure itself and how that impacts clear first amendment activities like holding a protest on the streets.

Or what about county political candidates... do they have the right to walk down the streets and do door knocking? How about religious solicitation (which is where most 1st amendment law comes from)? What sort of Time/Place/Manner restrictions can be imposed in this situation? Does the community allow some folks on their property... like, the ice cream trunk? Does that open the door to others (which is what happens when the government creates a public venue... it can keep it closed to all, but not closed to some)?

As for which approach is easier to argue... the expectation of privacy doctrine is not a constitutional matter, it's all common law, so the rights (flowing either way) are far less absolute. If I had to pick one to hang my hat on, I'd go the conlaw route every time.