With the complaint of 11th November 2009, the FDPIC is taking the online-service Google Street View to the Federal Administrative Court. This is an important step in the course of a development that started back in March 2009.
The FDPIC has been in contact with Google since spring 2009 when it notified the company that the publication of images would only be legally compliant if individuals appearing in them were rendered anonymous. Google was also informed that the FDPIC would act if it was evident upon publication of the images that the process of rendering individuals or specific features anonymous demonstrated serious shortcomings and if a larger number of people were recognisable on Google Street View. Following the activation of this service in the night of 17th/18th August 2009, the FDPIC received numerous referrals and complaints. His own enquiries confirmed that numerous individuals and vehicle registration numbers had not been rendered sufficiently anonymous. Consequently, the FDPIC intervened at the end of the first week and demanded substantial improvements. A number of discussions then followed during which solutions to the problems were sought. On 4th September 2009, Google announced that a new software would be used to render personal details on images in Switzerland anonymous, although this would not be possible immediately. Google stated that it would not publish further images in the meantime. On 11th September, the FDPIC issued a recommendation, large parts of which were rejected by Google in a letter dated 14th October. Google gave assurance that no new images would be published before the end of the year.
1. Aims of the complaint
These are identical to the recommendations:
- Faces and vehicle registration numbers must be rendered completely unrecognisable
- Individuals in sensitive areas must be rendered anonymous
- No images may be taken in private areas
- Google must give advance notice of where (names of towns and communities) it intends to record images and when these images are to be published online.
Due to the fact that Google is only willing to refrain from posting further images until the end of this year, the FDPIC is seeking a provisional measure that would prevent the further publication of images online and further images from being taken until a final decision has been taken.
2. Grounds for the complaint request
a) Faces and vehicle registration numbers to be rendered anonymous
Google claims that the software used to render faces and vehicle registration numbers anonymous has a success rate of 98.4% and 97.5% respectively. However, in an internal study by Google, researchers calculate the success rate to be no more than 89%. According to Google's own figures, some 20 million images from Switzerland have been published online. At the error rate claimed by Google of 2%, that would imply that over 400,000 images are insufficiently blurred. On the basis of Google's internal study, the figure would in fact be over 2 million images. Due to the lack of an independent study, the FDPIC is unable to determine which figure is most accurate. Nevertheless, he is of the opinion that based on the figures provided by Google, it is fair to say that there are significant shortcomings in the process used to render images anonymous.
b) Problem of zoom function
The unsatisfactory process used to render images anonymous is further accentuated by the fact that the software features a zoom function which enables users to select people from a crowd and identify them, something that a normal passer-by would be unable to do. It is generally accepted in practice and in case law that this ability to pick out individuals represents a potential infringement of privacy, which is why the media are not allowed to zoom in on and isolate individuals. It is conceivable that the problem with the software, which is not able to render faces sufficiently unrecognisable, would be significantly mitigated if Google were to remove this function.
c) Problem of undated still images and their publication online
Critics who believe that our demands go too far are keen to point out that the images have been taken in the public sphere and that any passer-by could perceive the situation in just the same way. This view is unfounded for a number of reasons:
- The random snapshot scenes displayed in Google Street View could be interpreted by users in a variety of ways (e.g. barkeeper in Zurich allegedly distributing drugs, member of National Council accompanied by a female colleague, in the vicinity of sensitive institutions).
- A passer-by does not ‘record' such random scenes unless the event was striking in some way (accident, etc.).
- The online publication of such images with a worldwide audience creates a whole new dimension (e.g. possibility of analysing, comparing or unlimited storing of such data).
d) Problem of camera shots from a height of 2.75m
From this height it is possible to take images of enclosed gardens, for example. This is quite clearly a private domain in which photographing is inadmissible and even subject to prosecution.
e) Problem of comprehensive images across Switzerland
The images published online to date reveal that Google does not only want to publish images of touristic sites and districts, but comprehensively covers the whole of the country. Thus, also images of purely residential areas have been published. The risk of privacy infringement is considerably higher here, as it is in these areas that people go about their daily lives, meaning that they could be identified even if their faces were rendered unrecognisable. Under Federal Supreme Court case law, even the open forecourt of a person's house can be considered as belonging to the private domain.
f) Problem of inadequate information
Although Google has made a number of improvements, its information practices remain inadequate. The FDPIC demands that Google provides notice a week in advance of where its image capturing expeditions are to take place. A week's notice also has to be given prior to the publication of new images.
Last update: November 2009