People Staring at Computers project automatically posts Apple Store customer photos

[0dev]

Secret agents raid Apple store webcam 'artist'

The US Secret Service has raided the home of an artist who collected images from webcams in a New York Apple store.

Kyle McDonald is said to have installed software that photographed people looking at laptops then uploaded the pictures to a website.

Mr McDonald said he had obtained permission from a security guard to take photos inside the store.

Apple declined to comment. However, the Secret Service confirmed that its electronic crime division was involved.

A spokesperson told the BBC that the investigation was taking place under US Code Title 18 /1030 which relates to "Fraud and related activity in connection with computers."

Offences covered by the legislation carry a maximum penalty of 20 years in prison.

Writing on Twitter, Mr McDonald said: "@secretservice just stopped by to investigate [web address removed] and took my laptop. Please assume they're reading any e-mails you send me."

No arrests had been made in the case as of 8 July.
Staring

Kyle McDonald's images were uploaded to a page on the blogging site Tumblr.

In the description of People Staring at Computers, the project is described as: "A photographic intervention. Custom app installed around NYC, taking a picture every minute and uploading it if a face is found in the image.

"Exhibited on site with a remotely triggered app that displayed the photos full screen on every available computer."

The site features a video and series of photographs, apparently showing shoppers trying-out computers.

Comments on the individuals by visitors to the site are also attached to the images.

Mr McDonald, writing on Twitter, said that he had been advised not to comment on the case by the online freedom group the Electronic Frontier Foundation.

Source: BBC News

My opinion on this is that taking photos of someone without permission, especially if those photos are then uploaded online, is a crime, and these actions by the SS were proper and correct, though he obviously shouldn't get 20 years for it.

 

[dukebound85]

My opinion on this is that taking photos of someone without permission, especially if those photos are then uploaded online, is a crime, and these actions by the SS were proper and correct, though he obviously shouldn't get 20 years for it.

No, it isn't

You can not prevent people from taking photos of you ,especially if you are in a public arena

 

[0dev]

No, it isn't

You can not prevent people from taking photos of you ,especially if you are in a public arena

There's a difference between, say, someone taking a photo while you're in the background, and someone rigging a bunch of computers in a shop to systematically snap and send 'em, as it were.

Clearly it is a violation of the law or the SS would not be involved. That part isn't debatable.

 

[jsm4182]

There's a difference between, say, someone taking a photo while you're in the background, and someone rigging a bunch of computers in a shop to systematically snap and send 'em, as it were.

Clearly it is a violation of the law or the SS would not be involved. That part isn't debatable.

Actually under the law they are the same thing. In a public place someone can take a picture of you wether you know they are taking the picture or not.

I don't see how there can be any criminal charges. Apple could ban him from their stores and try a civil suit, but he didn't break any laws.

 

[codymac]

No, it isn't

You can not prevent people from taking photos of you ,especially if you are in a public arena

Except that the areas in question were not public.

 

[jsm4182]

Except that the areas in question were not public.

When talking about privacy(such as having your picture unknowingly taken) public means anyplace open to the public, which includes a privately owned retail store.

 

[GoCubsGo]

Except that the areas in question were not public.

No but they're in public. There is a difference.

Taking someone's photo in public is one thing. Installing an app that takes a photo of someone and uploads it to a site is what I think the SS is focusing on here. When you're standing in front of a computer within a retail establishment I think it is reasonable to believe your face is not being captured by the machine itself. If there were a sign posted indicating what was going on then I think that this would have been less of an issue if an issue at all.

On the other hand, I think of the site People of Wal-Mart and wonder why that is not a problem for anyone. It seems reasonable to compare the two; both are instances of people having their photos taken without permission in a retail establishment and uploaded to the internet.

I don't think this guy should get 20 years but he should get something for the installation of an application that sends data outside the store. I also wonder if Apple will limit internet access on a go-forward.

 

[jsm4182]

No but they're in public. There is a difference.

Taking someone's photo in public is one thing. Installing an app that takes a photo of someone and uploads it to a site is what I think the SS is focusing on here. When you're standing in front of a computer within a retail establishment I think it is reasonable to believe your face is not being captured by the machine itself. If there were a sign posted indicating what was going on then I think that this would have been less of an issue if an issue at all.

On the other hand, I think of the site People of Wal-Mart and wonder why that is not a problem for anyone. It seems reasonable to compare the two; both are instances of people having their photos taken without permission in a retail establishment and uploaded to the internet.

I don't think this guy should get 20 years but he should get something for the installation of an application that sends data outside the store. I also wonder if Apple will limit internet access on a go-forward.

Before I say anything else I just want to say I don't agree with what he did, I'm just saying he didn't do anything illegal.

How is what he did any different from, like you said, People of Wal-Mart and the other similar sites, or the store having security cameras watching what they are doing, or even better market research companies that do things like this.

People shouldn't be allowed to install software like this on demo units, but there is nothing stopping them from doing it and no where is it posted saying you can't.

 

[aristobrat]

On the other hand, I think of the site People of Wal-Mart and wonder why that is not a problem for anyone. It seems reasonable to compare the two; both are instances of people having their photos taken without permission in a retail establishment and uploaded to the internet.

To me, the difference is the intimacy of how the photo was taken. I'm sure peopleofwalmart.com would have (subjectively) "even better" shots if more of their picture takers would walk up and get a closer shot, but it seems like for most folks, there's an inherent personal space with others that you don't cross, even if they're strangers. The Apple pictures were taken within that personal space. To me, that makes them feel weird.

I'm sure there's no legal distinction between a photo in public take "from a few feet away" vs "18 inches your face" though.

and

 

[fehhkk]

I think the whole problem, is the guy stealthily installing an App that takes pictures automatically. I don't think any Apple store would consent to anyone installing software in their demo machines.

Another thing is going into the store, and snapping pictures of people's mugs.

 

[localoid]

The TechDirt article has more details on how easily this was done...

On three days in June, McDonald's program documented people staring at computers in Apple stores. Since the stores wiped their computers every night, he had to go back in and reinstall the program each day he took photos. He uploaded a collection of the photos to a Tumblr blog, and last Sunday he set up 'an exhibition' at the Apple stores. During the unauthorized event at the Apple stores on West 14th Street and in Soho, when people looked at an Apple store machine, they saw a picture of themselves. Then they saw photos of other people staring at computers. Amazingly, nobody made a fuss. [...]

Over the course of the project, McDonald set up roughly 100 Apple store computers to call his servers every minute. That's a lot of network traffic, and he learned that Apple monitors traffic in its stores when he received a photo from a Cupertino computer of what appeared to be an Apple technician. The technician had apparently traced the traffic to the site McDonald used to upload the program to Apple Store computers; and installed it himself.

McDonald figured that Apple had decided the program wasn't a big deal. That was until four Secret Service men in suits woke him up on Thursday morning with a search warrant for computer fraud. They confiscated two computers, an iPod and two flash drives, and told McDonald that Apple would contact him separately.

See also: Electronic Crime, and/or Art?

Public reaction to the piece is notable, as commentary refers to the code McDonald used as "spyware." Many individuals seem to believe that McDonald's work is not art and that McDonald belongs in jail for his conduct. Others note the possible harm to Apple, such that users and shoppers may lose trust in the brand, especially in visiting Apple stores themselves. News stories appear to want to put a sinister spin on the work--that in my mind, simply is not present.

 

[James L]

My opinion on this is that taking photos of someone without permission, especially if those photos are then uploaded online, is a crime, and these actions by the SS were proper and correct, though he obviously shouldn't get 20 years for it.

Watch this video. Perfectly legal:

http://www.youtube.com/watch?v=IRBARi09je8&feature=related

Now, using the computer with spyware may be another thing though.

 

[wordoflife]

The problem is the "computer hacking" part. If Apple doesn't do anything, people will go like, "Hey, wanna go -F- around with the Apple store computer?" and then they'll do that. I have no idea what hackers would be able of doing, but I'm sure it could head in the wrong direction. Plus, it could cause a lot of PR problems for Apple ... "Apple computers take pictures of it's visitors - stay away!"

I'm sure Apple could seriously get sued.

Anyways, I don't think he should get 20 year for it. (Is casey anthony even getting that much time?? )

 

[singlestick]

The problem is the "computer hacking" part. If Apple doesn't do anything, people will go like, "Hey, wanna go -F- around with the Apple store computer?" and then they'll do that. I have no idea what hackers would be able of doing, but I'm sure it could head in the wrong direction. Plus, it could cause a lot of PR problems for Apple ... "Apple computers take pictures of it's visitors - stay away!"

I'm sure Apple could seriously get sued.

Anyways, I don't think he should get 20 year for it. (Is casey anthony even getting that much time?? )

What happened to the days when a photographer had to get a release before a person's phot could be used?

Yeah, 20 years would be harsh, but I don't see that Apple can let people install stuff on their computers or take photographs of customers without their express consent.

Interesting exhibit, though.

 

[James L]

What happened to the days when a photographer had to get a release before a person's phot could be used?

it totally depends on what the photo is being used for. If it is for editorial (non commercial) purposes and was taken in a public location releases are not required.

 

[pcmxa]

You can take photos of people in public and publish them in books, print them and hang them in galleries, load them up to the internet without their permission. The New York State supreme court recently ruled in favor of Philip-lorca Dicorcia when he was sued by a Hasidic Jew for taking his picture without his knowledge. The picture was featured in exhibitions and in a book.

In 2006, a New York trial court issued a ruling in a case involving one of his photographs. One of diCorcia's New York random subjects was Ermo Nussenzweig, an Orthodox Jew who objected on religious grounds to diCorcia's publishing in an artistic exhibition a photograph taken of him without his permission. The photo's subject argued that his privacy and religious rights had been violated by both the taking and publishing of the photograph of him. The judge dismissed the lawsuit, finding that the photograph taken of Nussenzweig on a street is art - not commerce - and therefore is protected by the First Amendment.[7]
Manhattan state Supreme Court Justice Judith J. Gische ruled that the photo of Nussenzweig—a head shot showing him sporting a scraggly white beard, a black hat and a black coat was art, even though the photographer sold 10 prints of it at $20,000 to $30,000 each. The judge ruled that New York courts have "recognized that art can be sold, at least in limited editions, and still retain its artistic character (...) [F]irst [A]mendment protection of art is not limited to only starving artists. A profit motive in itself does not necessarily compel a conclusion that art has been used for trade purposes."[8]

You have no expectation of privacy (legally) in public spaces. For photographs this is nearly absolute, the only exceptions I have heard of is using concealed cameras to photograph people who belong to protected classes (children for example). Some states bar audio recording without both parties' consent. this is what "photographers" are being charged with when they film the police using their video cameras. It isn't the image it is the sound that puts them in violation of the law. Many states only require one party permission, which means I can record anything I want without telling the person I am recording them (but I can't tap their phone without their permission). Even in the two party states, I could stand next to you while you talked on a cell phone and write down everything you say. You don't have an expectation of privacy, just the right not to be audio recorded without giving permission in those states.

in this case, the secret service is involved because he messed with telecommunications equipment, that apparently were crossing state lines, essentially planting a bug on Apple's machines without their permission, not because photographs were taken.

 

[codymac]

When talking about privacy(such as having your picture unknowingly taken) public means anyplace open to the public, which includes a privately owned retail store.

The photos were taken on private property and doing so falls under the legal concept of "conversion."* Had the photos been taken from outside the store, on a sidewalk or street, looking into the store - then fair game. Taking them inside the store, which is private property, for a non-editorial use, requires permission.

If I take a photo of your house and sell it to a photo stock house, then what? I may have legally taken the photo, and you certainly don't own the photo any more than I own your house, but I've used your house for my personal gain. I've converted it for personal gain.

This is precisely the reason that professionals get property releases and model releases.

Don't take my word for it. Feel free to contact the ASMP and ask.

Regardless, that's all a civil matter, and this guy has been criminally charged.

* ETA: I say this as a photographer, not a lawyer.

 

[pcmxa]

The photos were taken on private property and doing so falls under the legal concept of "conversion." Had the photos been taken from outside the store, on a sidewalk or street, looking into the store - then fair game. Taking them inside the store, which is private property, for a non-editorial use, requires permission.

If I take a photo of your house and sell it to a photo stock house, then what? I may have legally taken the photo, and you certainly don't own the photo any more than I own your house, but I've used your house for my personal gain. I've converted it for personal gain.

This is precisely the reason that professionals get property releases and model releases.

Don't take my word for it. Feel free to contact the ASMP and ask.

Regardless, that's all a civil matter, and this guy has been criminally charged.

I agree it is always good to get permission but in the US at least according a number of sites it is legal to take photos on private property, particularly if it is open to the public, unless they specifically ban it.

Yes, but only if it is not prohibited by the landowner. The landowner is within their rights to prohibit photography on their property or to require payment for permission.

If there are 'no photography' signs or terms of admission that forbid photography, you commit a trespass by taking photos, and may be told to leave. If you do not leave immediately reasonable force may be used to eject you. You may also be injuncted or sued for damages in a civil court. However the landowner or staff do not have any legal power to demand handover of film or memory cards, nor to require the deletion of images.

and

If the private property is open to the public, such as retail stores, private stadiums or tourist areas, filming may be allowed unless there are signs posted expressly forbidding videotaping or photography
Walking onto private property without permission is trespassing. In some states, so is pointing a camera over a fence
If the private property belongs to someone other than a commercial business, it's best to get the property owner's permission before shooting

and

Do I need model releases for people photographed on private property?
Not unless you are intending to sell the picture for advertising or marketing use. A model release is a binding contract that agrees to relinquish specific future claims of equity in return for a 'valuable consideration'. This is usually payment, but can be prints or some other agreeable exchange.

So, since this was art (and that is generally recognized as not being commercial (even when being sold for bucket loads of cash) I don't think this is a privacy issue, unless Apple has a "No Photo" policy.

 

[codymac]

So, since this was art (and that is generally recognized as not being commercial (even when being sold for bucket loads of cash) I don't think this is a privacy issue, unless Apple has a "No Photo" policy.

It really depends on the photographer's use. If it's art, and produced for art's sake, then it's generally assumed to be OK. If it was done for a trade purpose, then it's not OK and can fall under a conversion argument.

If the photographer here had so much as a click ad on his site, I could see a conversion argument being successful.

Rule of thumb is: outdoors: OK, indoors: get permission

I'm not sure the site you meant but could only find a similar UK site listed. As a former member, I'd stick to what the ASMP tells me as far as US law goes. This sort of thing is one of the reasons I originally joined.


Criminal prosecution seems largely for punitive purposes here. It will be interesting to see what happens to this guy.

Every Mac at the local Fry's always has photo booth photos of... people looking at computers up on the screen.