When Art, Apple and the Secret Service Collide 358
theodp writes "Last July, Slashdot reported on Kyle McDonald, the artist who had the Secret Service raid his home at the behest of Apple, who was miffed with Kyle's surreptitious capture of people's expressions as they stared at computers in Apple Stores. A year later, Wired is running McDonald's first-person account of the preparation for and fallout from his People Staring at Computers project. 'I really wasn't expecting the Secret Service,' McDonald begins. 'Maybe an email, or a phone call from Apple. Instead, my first indication that something was "wrong" was a real-life visit from the organization best known for protecting the President of the United States of America.'"
Re:Apple's now worse than Microsucks (Score:5, Informative)
>>>the apple store is not a public facility but a private one
According to New York and most state laws, a private venue that has been opened to the general citizenry is no longer a private area. It is defined as a "public facility" and therefore has to abide by the state's non-discrimination, non-smoking, and other laws.
Re:Only in America... (Score:5, Informative)
The photos were gathered by going to Apple retail stores and secretly installing an application on Macs that would snap a photo using the Mac's built-in webcam iSight every minute and uploading photos if a face of an unsuspecting customer was detected.
I suspect that's the tricky bit that brought down the wrath.
Re:He was surprised?! (Score:4, Informative)
He asked permission and they allowed him to do this. RTFA.
Re:Apple's now worse than Microsucks (Score:3, Informative)
And "public facility" is a private area that has been voluntarily opened to the public, such as a store or bar or mall. It differs from a private home, because you don't have to let black people into your home. Or women. Or people under age 21. You are allowed to discriminate. BUT the moment you open the doors to everybody, such as converting your home or office into a store or restaurant, then you go from "private" to "public facility" and you are no longer allowed to refuse service.
You are confusing "public accommodation" but private ownership which is expressly defined in the Commerce Clause with public ownership. Inside a business can be considered private. The owners of a private business can have CC recording but must disclose this to any patrons. Police cannot install hidden microphones inside a restaurant and record conversations without a search warrant for example. Recording individuals in a public park is permissible. However, you still missed the point: Illegally installing software and spying on people is okay with you?
Re:Apple's now worse than Microsucks (Score:5, Informative)
1) The Apple Store is not a "public facility" it is private property.
Maybe by your definition, but by law it is open to the public and thus public.
2) he wasn't using his own equipment, he was installing software on Apple's machines.
Which is allowed. They have a very generous policy for use of their display machines, choosing to wipe them every night rather than try to enforce some kind of demo mode. I think he abused this policy, but it was not a crime.
3) Apple doesn't "forbid" you from using your own cameras and recording equipment in their stores to "record what they witness in plain sight", it just frowns on you effectively installing hidden cameras to capture people's images without them knowing.
Frowning is one thing - calling the Secret Service is another!
Re:Apple's now worse than Microsucks (Score:4, Informative)
Did YOU read it? He asked if he could take pictures, and was told sure. He DIDN'T ask to install hidden webcam software, and reading the article he was clearly trying to not get caught doing so by making sure no one was watching him, and having tabs to other websites open that he could switch to if someone came by.
of he "had permission", why the sneakiness?
Re:Only in America... (Score:5, Informative)
"You can take pictures if you want, but to publish them in any way, be it a magazine, website or artistic display, you need to get permission from the individuals in the pictures to do so. It's called a model release and every ethical photographer knows about them. "
You're not a photographer, then, because in public venues, you have no right.
Yes, I do photography and film. Yes, I attended school for it.
Quit talking if you're not educated on the subject/hold any certification.
Re:Only in America... (Score:5, Informative)
...he asked an Apple employee for permission, which was granted.
No, he claimed he asked a Security Guard (which may mean the guard worked for Apple, or might mean he worked for a company that was contracted by Apple) if he could take pictures in the store.
He did not ask for, or receive, permission to install software on the computers.
Re:He was surprised?! (Score:5, Informative)
He checked the terms of use and found no restrictions against installing software, spyware or otherwise..
Except for, you know, the The Federal Computer Fraud and Abuse Act:
Whoever--
intentionally accesses a computer without authorization...
--knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer;
--intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or
--intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage;
The United States Secret Service shall, in addition to any other agency having such authority, have the authority to investigate offenses under subsections (a)(2)(A), (a)(2)(B), (a)(3), (a)(4), (a)(5), and (a)(6) of this section. Such authority of the United States Secret Service shall be exercised in accordance with an agreement which shall be entered into by the Secretary of the Treasury and the Attorney General."
Re:Nobody expects the spanish inquisition! (Score:4, Informative)
I did not say I worked at an Apple store. I worked at a large multi-industry multinational corporation that recently celebrated its 100th anniversary. I'd assume the Apple training videos don't date from 1970, but I'd also assume the same reasoning applies for the confidentiality: They'd rather not waste the time and money remaking their training materials whenever someone on the Internet finds something they don't like.
The Photographer's Attorney (Score:4, Informative)
Yes, I do photography and film. Yes, I attended school for it.
But were you sleeping in class?
In general, when people are in public, you may photograph them. The use of the photographs can be restricted due to certain privacy rights. The rights for a person to certain kinds of privacy are recognized in most states, but differently for each one. It is, therefore, tricky to know what you can do. The safest approach is to follow the most restrictive one. Privacy rights can be subdivided into four areas.
The first is "invasion of privacy" or "intrusion upon another's seclusion." It happens when someone actually intrudes a person's private domain that would be considered offensive to the average person. As a photographer, the act of going on someone's land without permission would violate this privacy. You don't have to take the photo or publish the photo for the action to be unlawful. Some courts have found an invasion of privacy even when photographing someone in public. In those cases, the photographers harass their subjects, use hidden cameras, or wait for a woman's skirt to be blown at a fun house. It also is unlawful to view and photograph people inside of residences or other places where privacy is expected (businesses are ok), even when the photographer is standing in public.
The second is the public disclosure of private facts.
The third right of privacy is the portrayal of a person in false light. This happens often with photographs, but usually because of the caption. It requires someone to be publicly portrayed in a false manner in which an ordinary person would find the portrayal offensive. To be liable, the publisher of the photograph must have known or recklessly disregarded the probably falsity of what is represented. It is similar to defamation, when someone's reputation is damaged by a statement that is known or should be known to be false. False light does not require that the person was damaged.
The fourth right of privacy is very different from the other three. It is the commercial appropriation of someone's name or likeness without permission, or misappropriation. It also is known as the right of publicity. It happens when someone uses the name or likeness of another without consent to gain some commercial benefit. It usually occurs when a photograph of a person is used in an advertisement without the person's permission. That is why model releases are so important-they show that you have the person's permission to use the person's name or likeness. Permission is not required for editorial or newsworthy publications.
Be sure to consider other's rights of privacy before you click the shutter.
Take my advice; get professional help.
PhotoAttorney
Rights of Privacy Concerns for Photographers [photoattorney.com]