Fall Real Estate 2007

Publication Date: Friday, October 12, 2007

Real estate paparazzi
The new privacy invasion

by J. Robert Taylor, J.D.

The Internet is a wonderful thing, except when it comes to privacy and real estate. Are we taking the privacy, particularly in the sanctity of our homes, for granted? Newspapers never used to publish sales prices along with the names of the buyers and sellers.

I wrote a column a few years ago telling buyers and sellers how to avoid getting in the newspaper, and that advice still works. However, a new onslaught of Web sites invading your privacy makes that advice look a little like trying to retrieve an e-mail after you push the send button.

Where is the invasion coming from? Start with a Web search engine we all know and love, Google. They have mapped the Bay Area in a ferocious fashion to the extent that their new "Street View" tool allows anyone with an Internet connection to view your house from the street without getting out of their pajamas.

"So what?" you may say; anyone can drive by and see the same view anytime they want. Yes, but that is the point, they would actually have to get in their car, locate your street, find your address, and take a picture. Depending on when the Google van drove by, Street View might display you getting in your car, your license plate number, whether you have a car in the driveway or on the street, your contractor, etc. It is true that all of this information would be available to someone if they just drove up to your home and started taking pictures, but wouldn't that make you feel a little uncomfortable if you saw someone doing that? Hold on to that feeling for a minute.
Should we feel more comfortable because everyone is subject to the same invasion? What about those huge estates in Woodside that are less vulnerable since you can't see the house from the street? This seems a little unfair. To make things equal perhaps the Google van should be allowed to go down their driveway. Oh, I forgot, they don't need to. Just check out Google Earth and you can see if the property has a tennis court, swimming pool and cottage.

Perhaps the most pernicious invasion may be coming from the real-estate industry itself. Brokers used to sell houses just fine with a picture of the front of your home in the multiple-listing service. Now brokers are going whole hog on the multimedia marketing craze. It is now commonplace to post virtual tours of the interior of your home on multiple Web sites either with photographs, digital floor plans or video clips. In addition to viewing the real property, these sites may show your personal property as well.

Are you worried about the general public knowing the exact floor plan and contents of your home? Sellers may care less since they are moving anyway, but the purchasers must buy knowing that all of this information about the home they just purchased was available to the general public.

Should it give you comfort that Web sites may remove the information once the escrow closes? Yes, that would be some comfort if it were actually true. In many cases virtual tours are accessible for many months after the sale while the broker continues to market his/her success at selling you the property. On top of this, many brokers use third-party services that may store and distribute the content long after the house is sold. The new buyer has little or no control over how this information is used or distributed since the pictures and videos were all taken prior to the purchase. In addition, even after Web sites are taken down, there are search engines such as Archive.org that store information that was posted on the Internet and enable users to retrieve Web site information that has been "removed." Once it is on the Web it is like trying to retrieve that e-mail you didn't mean to send.

Other Web sites such as Youtube.com or Yahoovideo.com are used by some brokers to expose your home to potential buyers via a Web video presentation. Many are detailed and fairly high-quality videos of both the interior and exterior of the property. Your toilet on Youtube.com, I think I will invite myself over. These clips once online can easily be stored and disseminated. Who would want to do that you ask? Hmmm, not sure, but I am guessing that some bad guys might find a use, or at best you might get targeted by remodeling contractors who now know you need to update your bathroom.

Much to the dismay of my college-age children I was invited to join Facebook.com by a real-estate social-networking group, where brokers can post pictures and videos to share. Only those in the network can view this material, therefore this information is not in a domain that is accessible to the buyers or sellers to monitor. This is no doubt a marketing faux pas by Facebook, letting a 50+-year-old geezer like me enter a domain that was once only reserved for cool college kids. Does this type of social networking really help sell your property, or just provide information to third parties that could undermine your privacy and security?

Is this level of invasion necessary to sell your house? Since the product hasn't really changed much in the last 50 years, it is probably reasonable to assume that buyers would purchase homes even if they could not access multimedia tours, floor plans and videos on the Internet. The invasion may actually lessen the value of some properties, especially for those buyers who value their privacy and security. Is a multimedia presentation going to sell homes in a market that is overwhelmed by too many homes for sale? The real-estate feeding frenzy seems to be abating in most areas of the country, but the real-estate paparazzi may be here to stay. Too bad for those who value their privacy and security.

The Supreme Court in a famous 1986 case, California v. Ciraolo, held that the government could fly over your home and take photographs of your property and use those images to obtain a search warrant, because the views of your home and yard are public, meaning anyone with a satellite or small plane could fly over and take pictures. The Supreme Court held that the police could not climb over your fence to look at your yard, but using a plane to look was just fine. The Supreme Court stated, "The touchstone of Fourth Amendment analysis is whether a person has a constitutionally protected reasonable expectation of privacy, which involves the two inquiries of whether the individual manifested a subjective expectation of privacy in the object of the challenged search, and whether society is willing to recognize that expectation as reasonable."

If we put multimedia views of the inside and outside of our homes on the Internet, are we discarding our Fourth Amendment right to privacy in exchange for a marketing technique? If we allow the real estate paparazzi in when we sell and buy homes are we eroding the previously held view that we have a "reasonable expectation of privacy" in our homes? At what point does the line between public view and private view become blurred? It seems like a high price for the seller, the buyer and society to pay. It is ironic that we would fight tenaciously to keep the government from being able to breach our privacy, yet we are so willing to give it up to the whole world for a buck.

--J. Robert Taylor, J. D., a real estate attorney and broker for more than 20 years, has served as an expert witness and mediator and is on the judicial arbitration panel for Santa Clara County Superior Court. Send questions to Taylor c/o Palo Alto Weekly, P.O. Box 1610, Palo Alto, CA, or via e-mail at btaylor@taylorproperties.com.