Mac Photo Project Lands Artist in Legal Hot Water

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New York artist Kyle McDonald found himself in potential legal hot water when U.S. Secret Service agents confiscated his computers after he set up an art project that snapped photos of customers in Apple retail stores. The photos were captured with Apple’s own display computers with a little help from an application Mr. McDonald installed on the Macs, according to Mashable.

Mr. McDonald installed an application on several demo Macs in New York City Apple Stores on several different dates and snapped photos of customers looking at the machines using the computer’s built-in camera. The app then sent the photos to Mr. McDonald, and several ended up on a Web site he built to show off his work.

Photo from peoplestaringatcomputers.comOne of many images that appeared on the People Staring at Computers Web site

An Apple technician tracked down where the images were being transmitted, and that led to Secret Service agents showing up at Mr. McDonald’s residence with a search warrant Thursday morning. The confiscated his personal computers as part of a computer fraud investigation, which apparently falls under the Secret Service’s jurisdiction instead of the FBI.

Mr. McDonald doesn’t think he broke any laws, although the Secret Service investigation may say otherwise. “My main thought is that I’d rather spend my time and money making new work rather than dealing with a computer fraud investigation,” he said.

The agents told Mr. McDonald to expect Apple to be contacting him, although it doesn’t appear that they have as of yet.

Apple has not commented on the incident.

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28 Comments Leave Your Own

Maria

It seems to me that Apple could press charges against him for messing with their computers, thus turning them into surveillance devices that could get Apple in legal trouble.

But, at the same time, I’m amazed that the software remained on the computers at all. I assumed that Apple did a full reinstall of all systems on display each day using some sort of network tool. That’s common in places with publicly accessible computers. After all, he could have just as easily installed a virus, no?

And sorry, but I don’t consider this “art.”

cb50dc

1. Wait: Apple Stores leave all their Macs wide-open to this? That astonishes me. The public-use PC in the lobby of the Ramada Inn, sure. But Apple Stores?

2. “Mr. McDonald doesn?t think he broke any laws…”
OK, I’m not sure of the technical aspects, but it seems to me this violates some sort of “DUH” law. Maybe laws against being a jerk? Of course, my legal expertise is limited to watching “Law & Order” ? Nemo? ‘Sup?

Helge

1. I really don’t know the legal situation in the US, but here (and I think in almost all western democracies) people hold the rights of pictures showing themselves (at least in a reasonably exclusive way like the picture above) and the photographer has to get the permission to publish them. I can’t see how the (seemingly secret) app of Mr McDonald could have accomplished that.
And I feel sorry for him if he did not know about this; at least here it is considered as common knowledge.
2. I think it is weird that apple leaves their computers open to install applications, too…

firestorm

In the USA, you do not have a right to your own image and photographers can use photographs of you editorially and for fine art, unless they misrepresent you in some way. The line is generally drawn at using the photographs commercially, meaning for ads that are meant to sell products. For those, a model release is required if the photographer is to be safe from costly lawsuits.

That said, the other aspects of this case are kind of creepy, though I do consider it art.

Lee Dronick

Legalities of Kyle’s photography projet aside I am wondering why the Secret Service is doing the investigation. I don’t think such activity comes under their responsibilities unless some foreign diplomats were photographed; Seeing as the pics were taken in New York City it is possible that United Nations personnel are involved.

vasic

But, at the same time, I?m amazed that the software remained on the computers at all. I assumed that Apple did a full reinstall of all systems on display each day using some sort of network tool. That?s common in places with publicly accessible computers. After all, he could have just as easily installed a virus, no?

Anyone who has ever been to an Apple store (and played with the Macs on display) knows that they are wide open, and people install whatever they want on those. Many, many times, I’ve seen Skype, Yahoo Messenger, ooVoo, MSN messenger, Firefox, even Photoshop, Illustrator, Premier trial versions and all other kind of stuff. Display Macs are wiped and reinstalled (from image) every morning. This is why this guy went to those stores every morning and re-installed his application on those Macs.

Apple never prohibited (neither explicitly, nor implicitly) customers from installing anything on display Macs in stores. They may well be encouraging it, since it allows people to gain meaningful positive experience with a Mac. This may be a gamble on their part, since there is always that very tiny risk that someone malicious may be bringing and installing some malware. So far, this seems to be the worst case yet.

vasic

I’m hoping we’ll soon hear from our resident legal mind, Mr. Nemo, regarding any possible legal trouble this guy may find himself in.

Legal trouble aside, it is clear to me that he clearly didn’t have any sinister, malicious intentions. He may be quite thin when it comes to familiarity with the ways laws work, since he was clearly convinced that verbal permission given by the store staff and customers (to take pictures) was enough to keep him out of legal trouble.

Lee Dronick

D’oh! I just noticed in the article that computer fraud comes under the duties of the Secret Service.

FlipFriddle

Throw him in the clink. This is the nonsense that gives real artists with talent and craft a bad name. I’m sure he can entertain his cellmate with some “performance art.”

Mikuro

Regarding copyright, my impression has always been that the photographer holds the copyright.

However….who is legally the photographer here? Can you really say McDonald is the photographer because he installed the software that took a photo without his interaction or even awareness? He didn’t own the equipment, he didn’t take the photos, he wasn’t even present when the photos were taken.

Anyone with more legal knowledge care to enlighten me? I’m really curious.

DamenS

@Vasic, how do you know he had verbal permission from the store staff and customers to take photos ?  That is not stated in this article and would seem to be the antithesis of what is being conveyed here (indeed if he did have “verbal permission” from the store staff and all the customers he photographed, there would be no legal issues involved at all, unless he tried to sell his work in a format other than “art” or “fine art” in which case he would require signed model releases).  If all of this was the case he would not be “thin” when it comes to familiarity with the ways the laws work - he would be absolutely correct.

There is no “expectation of privacy” within the USA when in a public place.  In fact, if someone is located in a public place they can take a photo of someone on PRIVATE property, provided they did not have to take excessive and unreasonable steps in order to be able to do so.  If you are in your bedroom naked and clearly visible from the street, you are “fair game’ to be photographed - check your curtains people !!

The issue here from a legal point of view (in the USA) is not that these photos were taken secretly or without consent or of people on “private property” (with no reasonable expectation of privacy), the issue is that these photos were taken FROM private property without consent of the “owner”.  IF (as vasic claims) the photographer had received verbal permission from the staff, this problem would disappear (unless Apple could successfully argue that the staff had no authority to give consent AND that this was known to the photographer) and the photos would be entirely legal.

This is essentially the same as where I live (in Australia) - not every Western Democracy has the same laws when it comes to photography.

DamenS

@Mikuro I would assume it is considered that he DID take the photos as he was the one who set in motion the steps required to ensure the photos would be taken, at whatever interval. 

Ownership of the equipment doesn’t matter (unless you want to argue that when I borrow my friend’s camera for a day, the shots I take have been photographed by my friend -clearly ludicrous). 

The fact that he didn’t “take” the photos (which I would argue is incorrect) and wasn’t present when the photos were taken are also irrelevant.  If I set up a camera in a “hide” on an intervalometer to take photos at specific times/intervals in order to get shots of wild animals, and then go to my car or a McDonalds whilst the camera takes photos (maybe I don’t want the animals to catch my scent and be scared away), would they not still be my photographs; would I not still be considered the “photographer”, and if not, who else would ? 

I should note that all of my legal knowledge is also gleaned from “Law and Order” and one or two US-based photographic websites, but all of the above just seems like basic common sense.

vasic

Original article on Mashable mentions how he asked and obtained permission to take pictures from the store staff, then asked people around the store if anyone objected to the pictures being taken for his project. Apparently, not one person did, so he went ahead. Article also quotes him as saying: “if they had objected, I wouldn’t have done it”.

DamenS

Then he has done nothing wrong (at least when it comes to the “photo taking” part from a legal or moral perspective) ... providing he is telling the truth. 

It then becomes interesting that the “investigation” being launched is one of “computer fraud” rather than anything stemming from the actual photography or “privacy concerns”, which may lead one to suspect that there is more to this story (probably related to the actual “App” he installed and the permission obtained from Apple therein) than is currently being reported.  Or maybe the SS is just bored and wanting to justify their existence and take some “market share” from the FBI ?

vasic

The ‘more to the story’ is in the original Mashable story.

The app he installed to take pictures uploaded all the pictures to his remote server. Once all the pictures were taken, he created a video (search for Kyle McDonald on Vimeo) and went to the 14th Street Store in Manhattan to exhibit his work by installing his presentation on the store Macs and showing it to the customers.

The automated uploading to a remote server seems to be the sticky part where SS comes in.

Bosco (Brad Hutchings)

Legalities of Kyle?s photography projet aside I am wondering why the Secret Service is doing the investigation.

Duh! Because it’s out of the REACT team’s jurisdiction.

Lee Dronick

It got me thinking. Put a pinhole camera behind/through some artwork, then put it in a public area and take photos of people checking it. Maybe two cameras, one each in the pupils of a portrait so that you could do a stereoptic thing.

Check out my video taken from underneath a bird feeder. I just recently put on the website

furbies

Check out my video taken from underneath a bird feeder. I just recently put on the website

Watch the pretty birdy(‘s butt !)

Sorry Sir Harry, but I couldn’t resist.
I’ve heard of models working for peanuts, but not bird seed ?

Lee Dronick

Sir Harry Flashman said:Check out my video taken from underneath a bird feeder. I just recently put on the website
Watch the pretty birdy(?s butt !)

Sorry Sir Harry, but I couldn?t resist.
I?ve heard of models working for peanuts, but not bird seed ?

Glad I could be the butt of a joke smile

It was one of things that evolve from your original idea. I was taking “garden variety” photos of the birds at the feeder. That changed into trying to capture them landing, like this one, but a more vertical view. I may put off the project until early autumn when the area will be in shade and I can expose the shot with less contrast.

Dean Lewis

I’m skeptical the guy could have possibly gotten permission from every customer in the store. Did he hang out all day and catch people looking at the computers? He would have had to do so after they were done in order to get a “true” look at them as they used the system. I’m also skeptical that the store employees have the right to okay such a thing. Perhaps the manager does, but as conscious as Apple is of customer experience, I doubt it would have been okayed—not without him staying all day and having people sign releases after each recording. It’ll be interesting to see how this one develops, because, personally, I would be pissed off if I was a customer. I kind of expect security cams in a store; I don’t expect to be recorded by a computer cam and then get used in an “art” project.

Nemo

I took a quick look at the federal criminal law.  The Secret Service probably showed up because of 18 U.S.C. ? 1030 (a), 5(C), which provides:

“Whoever intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss.”

That would probably be enough for the Secret Service to have jurisdiction, because 18 U.S.C. ? 1030 (d) expressly gives the Secret Service power to investigate certain violations of ? 1030; especially since the Macs in Apple’s stores are connected to the Internet, the interstate commerce clause requirement for federal jurisdiction is satisfied.

In addition to the federal crime, there are probably N.Y. State property crimes that the artist violated, which prohibit unauthorized use of by someone of another’s personal property.  And since Apple did not authorize the artist to be on the premises of its store to install software on its computers, he is also probably guilty of criminal trespass. 

The U.S. Attorney for the Southern District of New York will confer with New York City’s District Attorney to decide who will prosecute the artist first.

Apple has the right under the federal statute, supra, to sue for civil damages, and Apple probably has the right to sue for civil damages under the tort and property laws of New York.  But I doubt that Apple will sue for civil damages.

However, I qualify my statements about New York law by stating that I am not licensed to practice law in New York and have done so only Pro hac vice.

I have a hard time understanding how, in anyone’s moral calculus, it isn’t wrong to surreptitiously install software on a business’s computer to secretly record people visiting that business, but notwithstanding that, I doubt that the authorities will be too severe with the artist.  While the artist has done something wrong, he has done something more foolish than wicked.  Therefore, I expect the prosecuting authorities to give him a hard slap on the wrist.  But they may feel the need to make an example of him.  In which case, the penalties of the criminal law, both state and federal, could quite severe.

Nemo

One other thing to note is that, though the artist may have receive permission to take pictures of people in the store with his external camera, he apparently did not receive permission from any of Apple’s employees to install the software on Apple’s computers at the stores to take pictures of its customers as they used or came into the field of view Apple’s Macs.  In short, the artist did not receive permission to do what he did, that is, install software on Apple’s computers to take pictures of customers and other people in Apple’s stores.  Thus, the artist’s accessing of Apple’s in-store computers was unauthorized, which exposes him to criminal and civil liability for violating the laws that I described, supra.

In fact, I strongly suggest to the artist that he not try to claim that asking for and receiving permission to use his camera to take pictures of customers in the stores further authorized him to surreptitiously install software on Apple’s in-store computer.  That will only make him look like a liar to judge and jury.

Nemo

The artist probably also violated 18 U.S.C. ?? 2511, 2512.  Section 2511 prohibits the unauthorized interception and disclosure of oral or electronic communications, such as images.  Section 2512 prohibits the manufacture of a device that intercepts oral or electronic communications, which is what the artist probably did when he installed his software on Apple’s Macs.  Both of these provisions are also federal felonies, along with 18 U.S.C. ? 1030 (a), 5(C), supra.

Bosco (Brad Hutchings)

I’m surprised this hasn’t revived the discussion started with the Lower Marion School District’s remote MacBook camera spying about whether these devices need more explicit indications that they are taking pictures, especially when placed in public settings.

John Dingler, artist

Society writes laws to discourage malicious criminal behavior, to provide punishment, and give guidance to restitution, not to create crimes out of whole cloth, nor create jobs or produce income, nor to discourage artistic creativity.

In my judgement, he was thoughtfully and artistically creative; He was examining the meaning of observation—who/what is the observer—and the form that watching takes in a tech society. Diego Vel?zquez’s “Las Meninas” (1656) also addresses this issue.

He also got free publicity, although it was inadvertent, but important; It makes an artist’s personality stand out and his/her name recognized, the latter adding cache to the artist’s work making it more desirable.

If I were on the jury, I would vote not guilty or introduce jury nullification.

But here’s the context: Bush murdered thousands of his innocent US troops in Iraq because he was mad that Sadaam could not produce any WMDs (according to Blix) and therefore his people could not find them. Instead of being investigated, he’s rewarded for doing good works, retiring comfortably with a pension.

Lee Dronick

@John Dingler

I doubt that he will go to jail or even face a jury, maybe unsupervised probation and/or a small fine if anything.

Creative? Yes in my opinion.

Publicity? Yes, even if he did break a law in doing the project. Do a web search on “The Surfing Madonna” in Encinitas California. This recently happened just a few miles from my place. He created a beautiful mosaic, but put it on public property without permission so legally it was graffiti. The story ended well and he certainly isn’t facing jail time, but he is now famous.

John Dingler, artist

Hello Harry,
Creative as well as being a valid art form. We know that original and significant art, such as this one, can plop into public consciousness from unexpected places, in this case the Apple Store. Funny.

The graffitti artists, Damien Hirst and the guy who became prominent with his “OBEY” piece, Shepard Fairey, belong to the same method used to achieve public prominence.

John Dingler, artist

No, not Damien Hirst, Bansky.

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