Latest US-EU privacy divergence: pictures of your house

The “street view” feature of Google maps is proving to be yet another example of innovative uses of new technology raising legal and ethical questions about personal privacy, and of differing perspectives on just what is and isn’t considered personal information here in the U.S. and abroad. In January, the 3^rd U.S. Circuit Court of Appeals ruled that Google did not violate the privacy of a couple who sued the search giant, arguing that showing a picture of their home along with their street address was an unlawful invasion of privacy. In its ruling, the court said that to constitute an invasion of privacy subject to a private right of action, the behavior would have to be “highly offensive to a reasonable person,” and someone approaching a home and taking a picture doesn’t rise to that standard. The only part of Google’s practice of employing armies of photographers to take the photos displayed in the street view was the fact that the photographer in this particular case drove into the couple’s driveway in order to take the pictures; the appellate court ruled that the couple could proceed with a trespassing claim.

In contrast, Google’s addition of street view images in Europe might be more problematic, as the Consumer Minister of Germany said publicly last week that she wanted to force Google to get the consent of individual citizens before pictures of their homes could be published online. This follows similar criticism of Google Earth by the German Justice Minister, and could result in new legal requirements to get Google to proactively solicit consent, rather than wait for people to object to photos after they are taken. Google has offered to obscure personally identifying features that might appear in the photos, such as license plates and faces, but only if individuals request that they do so. Fundamentally at issue here is when photographic images constitute personal information — there seems little debate that a photograph of a person is subject to privacy protections, but no clear handling for a picture of a person’s possessions or domicile. The apparent divergence in U.S. and European perspectives on this issue is reminiscent of the disagreement about treating IP addresses as personally identifiable information. Standards about personal privacy are markedly different in European countries, so it seems at least feasible that Germany or another EU country could legislate new or existing personal data protections applied to residential photographs, regardless of American judicial opinions like the 3^rd Circuit panel’s that “no person of ordinary sensibilities would be shamed, humiliated, or have suffered mentally” from the simple act of having a picture taken of one’s house.