The Google Privacy Case - 10 Year Anniversary - Business of Aesop? No. 101 - The Porcupine and the Cave

On the one hand, it seems like a long time ago, but, on the other hand, it seems like yesterday. For more than 10 years, people all over the world have been downloading the court documents from the seminal Borings v. Google case (online for public access at https://www.googletrespass.com ). When case was filed in 2008, it was the first of its kind. This was the case that started it all.

Of course, the European Union has now enacted the General Data Production Regulation (aka GDRP) , and we hear so much talk about Facebook privacy breaches . These data breaches are nothing new to me, because I was there, 10 years ago, predicting it and trying to prevent it.

It was the year 2008, Google was—historically as of that time—a huge entrepreneurial success story on the Internet. At that time, Google could do no wrong, having developed the duly respected quality search engine. However, Google was now starting a new program, called Streetview, whereby cars would drive around with six spinning cameras on the roof recording everything in view.

Google's driver entered onto a street marked "No Trespass" thereby trespassing. If you're interested in the details, visit https://www.googletrespass.com . The case was summarily dismissed by U.S. District Court for the Western District of Pennsylvania. We filed the appeal and the lower court was successfully overturned on the trespass count against Google by the U.S. Court of Appeals for the Third Circuit. We then filed a Writ of Certiorari at the U.S. Supreme Court on the privacy count, the Preamble of which is reprinted below:

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UNITED STATES SUPREME COURT

STATEMENT OF THE CASE - PREAMBLE

No one shall be subjected to arbitrary?interference with his privacy, family,?home or correspondence....

December 10, 1948, United Nations Declaration of Human Rights,?Article 12

There isn’t any privacy, get over it.

May 9, 2008,?Google’s Vint Cerf, Seattle Post Intelligencer?

Freedom begins with the right to be left alone.?Privacy is not an incidental right, it is a fundamental right—if not the seminal principle upon which the United States of America was founded.

Google intentionally entered onto Petitioners’ land, without permission, surveilling and collecting data for its profit purpose.?If Google can do it, everyone can do it.?That is the entire issue in this case.?Petitioners and their counsel hold the point tightly, will not lose sight of it, and will not let it go.?Google claims its acts are trivial.?That is false.?Google’s acts are seminal.?There is a difference.

Google is a technological, economic and social phenomenon.?We are vigilant to recognize Google’s control over the American infrastructure of technology, economy and social interaction, and our growing dependencies.?If Google also controls our private property—the embodiment and reward of our time—there is nothing left, and we become Google’s slaves.?That is how seeds grow.?The intrusions of technology must yield to privacy, or privacy must yield to the intrusions of technology.?With potential fully realized, both seeds cannot stand, as equals, in the same place at the same time.?One must be first.?We cannot serve two masters.

Petitioners did not accept Google’s offer merely to remove the surveilled information from Google’s mitigation website.?Petitioners’ time and personal pursuits are not trivial, and Petitioners are highly offended that Google should presume to be master over them.?History teaches that a policy of appeasement is not a final solution.??

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. [1]

[1] James Madison “Memorial and Remonstrance,” 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.?[2]

[2] 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.

We Americans are deeply charitable, and, yet, not so much so to forgive the King for quartering soldiers in our homes—even for a fleeting and trivial single night.?On principle alone, it is highly offensive.?Even with a spare bedroom.?On principle alone, it is highly offensive.?The greater the principle, the more jealous.?The more jealous, the more offended.?Privacy is the first cause of war.

Henry Ford, a great American entrepreneur, said: “The older I get, the less I listen to what people say, and the more I watch what they do.”?A wise saying.?The law may be thought old, but it has evolved well-beyond a brash child’s clever arguments that the wallet was not buttoned in the person’s pocket, so it is okay to take it.??

Google argues that it is okay to enter Petitioners’ private property, to pass by clearly marked “Private Road No Trespassing” signage, to surveil and to collect data.?Google, the first of its kind, claims an easement on the World’s property from “license” by “general custom.”?Even the common sense of seeing a swimming pool, where children customarily swim, is not enough to stop Google’s continued spying, recording and publication.?Google is a corporation—indeed, Google is a technology.?It does not eat, it does not sleep, and it does not feel pain.

This is a nation of People.?Freedom begins with the right to be left alone.?Privacy is not an incidental right, it is a fundamental right—if not the seminal principle upon which the United States of America was founded.?Now we test how this Nation, so conceived, will endure.

We pray that this Supreme Court accept this case, deeds caught at the first experiment and arguments untangled.?The rulings below cannot stand, the only question is when they will fall.?We pray now.?And, yet, but for the full errors of the courts below, this case could not have so timely ascended to the final power and authority of this United States Supreme Court, so Providence must see some goodness in it.?Amen.??

- Gregg Zegarelli?

June 1, 2010

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And, just as the "Father of the U.S. Constitution, James Madison , said above, so did Aesop teach more than 2,000 years ago, in the sublime, Porcupine in the Cave:

101. THE PORCUPINE IN THE CAVE

There was a young Porcupine who wanted a new home.

He asked 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.?So the young ones let the Porcupine into the cave.

Indeed, it was fun for a while. But, over the years, the Porcupine grew larger, and his quills began to injure the others.?

So, the other animals demanded the Porcupine to leave.?

“No thank you,” said the Porcupine.?“I am comfortable where I am, but you can leave if you would like.”

Moral of the Story: See the thing from the seed. We oft embrace the thing of our undoing.

??????????????????~ Gregg Zegarelli, Esq.

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Read all the The Business of Aesop ? articles at the?LinkedIn Index. ?

Gregg Zegarelli ?is Managing Shareholder of?Technology & Entrepreneurial Ventures Law Group, PC .?Gregg is nationally rated as "superb" and has more than 25 years of experience working with entrepreneurs and companies of all sizes, including startups,?INC. 500, and publicly traded companies.?He is Adjunct Professor in the Duquesne University Master of Leadership graduate degree program, currently teaching, Developing Leadership Character Through Adversity. He is author of?One: The Unified Gospel of Jesus ,?and?The Business of Aesop ? article series, and co-author with his father,?Arnold Zegarelli , of?The Essential Aesop: For Business, Managers, Writers and Professional Speakers .?Gregg is a frequent lecturer, speaker and faculty for a variety of educational and other institutions.?? 2019 Gregg Zegarelli, Esq. ?Gregg can be contacted through?LinkedIn .

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