G-men Pay [Kyle McDonald] A Visit

Looks like the men in black have paid [Kyle McDonald] a little visit. The United States Secret Service is investigating him for fraud and related activity for his People Staring At Computers project. We just took a look at that one yesterday, and were thankful that all he was doing was taking people’s pictures and not stealing their information. Looks like [Uncle Sam] wasn’t being as lenient–or it could have been Apple that did the complaining since mums the word from the corporate giant. [Kyle’s] also keeping his mouth shut after soliciting the advice of the Electronic Frontier Foundation.

Since details are scarce, it’s time to play armchair lawyer. Let us know in the comments what you think [Kyle] might be up against, and whether we’ll see this thing hit the courts or not. And remember not to take those comments as legal advice since none of us actually know what we’re talking about.

By the way, the gentleman seen above isn’t [Kyle], he’s one of the unsuspecting ‘victims’ with some wikimedia commons slapped in for effect.

[Thanks Craig, David, and others]

112 thoughts on “G-men Pay [Kyle McDonald] A Visit

  1. Good.

    I fucking hate what some people claim is “art”. This prank was an invasion of privacy, and a bit of a dick move, to be honest. I don’t think he deserves jail time, but a fine or community service seems appropriate.

    If I were the EFF, I wouldn’t be representing him in this case; the EFF should stand against the erosion of online privacy at all times.

  2. This is an interesting question: does a person using a public computer equipped with a camera have a reasonable expectation of privacy?

    Judging by the way I’ve seen people using computers in Apple Stores, you would think the answer is “no.” Not only to they use the built-in cameras to take photos of themselves to post on Facebook, but they leave their pictures behind, sometimes even as wallpaper on the screens. This is mostly younger people, of course. We oldsters tend to be a bit more camera shy . . . and quite a bit less photogenic.

    But imagine that the unsuspecting customers were photographed by a corporation rather than an individual. There would be a huge public uproar, denunciations of the corporation by pundits and politicians, a rash of goofy anti-photo actions by customers in stores, and a huge public relations disaster for the corporation itself.

    It’s possible that Mr. McDonald stepped over the line here, but whether or not he actually committed a crime is the kind of question that makes a lot of boat payments for lawyers.

  3. I just think this was a statment that the author became too wrapped up in. Failed to see the legal and ethical implications of its effects and bit him on the ass. This is why id hope the EFF would help him.

    Realistically, anyone with a passion can find themselves in a tricky situation if they dont concider the legal and ethical implications.

    To site a bad refernece. Gary Mckinnon. Bad in the sense he knew what he was doing was bad, in this instance the guy perhaps didnt even concider that it was a harmful deed.

    He really doesnt deserve jailtime In My Oppinion.
    A fine maybe, Or Community Service.

    But … Really. DO you think this guy will re-offend. I think he will be too Sh*t scared to do anything art related on a pc again !

  4. i don’t see how it’s an invasion of privacy, they’re in a public place

    he should have their consent before putting them in his project though

    he could have stood outside the store and asked if they wanted to participate in his project when they came out.

    apple probably filed the case because it made them ‘look bad’

  5. Even though this was done in a place accessible to the public, that does not mean it’s a public space.

    After all, if you tried taking pictures in a public bathroom you’d be arrested. Simply saying “it’s public, I’m legit” doesn’t count.

    So right away, since this is a private establishment, most of the artists legal points get thrown out of the window.

    I even think you could argue that utilizing a computer, even if it’s accessible to the public, counts as a right to privacy because you can use it to check private material.

    So yeah, I can’t see how this is going to go well for him. Furthermore, I don’t even get how this is art, it’s just BS word soup to justify ill-conceived ideas, and I’m an artist, so it’s not like I’m reactive simply because I don’t understand art.

  6. what was the expectation of privacy using apple’s “public” laptops to check your email for free in their store which they record you?

    apple doesn’t have a terms of use when you use their computers for free in the store for checking email or surfing around.

    this is what a court will decide and maybe a jury if it goes that far.

    in nyc there are thousands of people who run in to the apple store(s) per day just to check email or surf the web for free.

    each night apple wipes the machines.

    “art” sometimes brings questions and social norms that are undefined or murky to light, regardless of how some might feel about this – the artist did just that …

    it will be interesting to see what happens with this, what laws may or may have not been broken and if the secret service was really needed for something like this?

  7. This isn’t undefined, nor is it murky. Look it up yourself. Accessibility to the public does not equal “public” as understood by both tort and common law.

    Was my bathroom example oblivious to people? Really think it’s legal for someone to walk into your stall in a public restroom and start taking pictures?

    No, obviously, because right to privacy is circumstantial and depends on more than whether or not the public can enter a location.

    Also, “free” access means little because public restrooms are free too. Does that mean you get to do whatever you want?

    As for terms of use, it’s a private establishment. Just because they let you do something doesn’t mean you get to keep doing it when you’re told to stop.

    Stores totally have the right to kick your ass out for pretty much whatever they want. “Terms of use” in this case is the reasonable knowledge that you can’t just go around doing whatever you want in a private establishment.

    Do you really need to be told that?

  8. No Invasion of Privacy. People are out in a public space, with no reasonable expectation of privacy. They are already being filmed by security cameras for one.
    No personal information is being taken (Name, Age, Address, SSN, etc).
    The pictures are not defaming them in any manner (and even if some did for example, show someone picking their nose, they did it in public, so no invasion of privacy or that the picture is insulting).
    The pictures are not of a provocative nature or purpose (No intentional downblousing or anything.)

    So there is no privacy issues. Hell, the camera in the laptops and displays have a hardwired led that turns on when power is applied to the camera. No way of disabling it short of soldering it off or physically damaging it. People had notice that it was happening.

    As far as the computer permission issues, Apple store computers are intentionally set up to allow programs other than those installed by apple to run. Same with the ipads and iphones. This allows people to test the computer out fully. Every night, apple resets the laptop to its original state (I believe they use Deep Freeze). So permission to install is implicit. Permission to use the network is implicit. Apple’s Tech and Legal departments either set it up this way on purpose, or never accounted for this type of usage when deciding to allow people the right to run programs other than the 10 or 20 applications in the dashboard.

    This is not the same as if someone installed a key logger or screen capture software. No intent to harm any party was involved. (Hey, banks get away scott-free from liability when they foreclose on the wrong house, or have house repo teams screw up and empty the wrong house, BECAUSE of lack of malicious intent.)

    What should happen here: Apple and/or the state has the guy promise to knock this off without explicit permission, and then Apple makes changes in their policies to prevent this (computer controls to prevent unsigned applications from running) and the state makes some new laws banning this in the future.

  9. @ Renee because people in a bathroom have a “”reasonable expectation of privacy””, you know, a legal standard. And even then, courts have different opinions of that. A public bathroom stall might have a reasonable expectation of privacy, but not outside of the stalls. It would not be a dry and cut case if a store put a camera in the public area of a bathroom if it did not point at the stalls (because the argument is that the communal areas like the hand dryer and sinks are open to plain sight). Same thing as a private car being considered in public (indecent exposure).

    And places of public accommodation, like Apple stores, are considered public, even if they are private property. There is Reasonable Expectation of Privacy in a huge public crowd.

  10. I would not expect my privacy to be secured on any computer FREELY ACCESSIBLE TO THE PUBLIC (not a public computer, but one that a lot of people use in a day). If I even stand in front of a computer, I have to assume that its possible that it is recording me. On top of this, Kyle did his due diligence in asking the security guard about their photography policy. His script did nothing nefarious or illegal, and I believe he is being made an example of…

  11. cde: @ Renee because people in a bathroom have a “”reasonable expectation of privacy””, you know, a legal standard.

    No duh, why do you think I brought it up? At least the ball is rolling now. So, the next question is, does checking a computer in a private establishment count as circumstances that grant a reasonable expectation of privacy?

    Since you can check private correspondence and bank records then yes, I believe it does. Why? Because that precedent already exists for public ATM’s.

    I would certainly be pleased if people brought up compelling reasons why it’s not the case. But so far 99% of responses to this have been “PUBLIC SPACE IT’S LEGIT LOLOLOLOL.”

    You could even make the point that this camera is specifically set up to focus on individuals as opposed to just running as people walk by. There have been cases where photographers were reprimanded for taking isolated, individual pictures of people. If you were on the street and someone started taking pictures of you, specifically of you, you have the right to tell them to buzz off.

    So this is very much so legally questionable.

  12. This is fucking stupid. He didn’t invade anyone’s privacy. He didn’t commit any fraudulent acts either-under any definition.

    The people don’t own the computers that took their picture, and they were reasonably to know they were under video surveillance because – duh – Apple stores have security cameras… There was also the simple fact of the little “Camera On” light that any half-brain using a plastiMac can plainly see.

    The images captured were used within accordance of fair use, tastefully, and there was no nefarious data mining operation behind the scenes. Leave this guy the fuck alone, or give him an award for spawning a good ethics debate. He’s not a criminal, not even a little bit.

  13. @Kyle

    LMAO! btw love the graphic on the pic. I hate it when people try to do something new that pushes the bounds of art and law without checking what the laws really are. it’s seriously not that hard to get on a law based forum and ask a licensed lawyer if you’ll go to “pound-me-in-the-ass” prison for doing something this stupid. I feel zero compassion for this guy. he could have blown someones cover that was put in witness protection or worse! Next time, leave the invasion of privacy to Big Brother.

  14. This reminds me a lot of a great quote that my favorite phot prof said:

    “Art is great in asking more questions than it can answer but there’s no point in asking questions that have already been answered”

    Want to be artsy-fartsy and “push boundaries?” Maybe check to see if they’ve already been defined. Otherwise it’s just lazy as hell and it’s just using “art” to rationalize a poorly constructed concept.

  15. Just a tip from my own experiences. If any law enforcement agent, the the US, takes anything of your property insist on a receipt for each and every item taken into custody.

  16. @Renee:
    Better go arrest this dude/chick…


    and this guy/girl too…


    and him/her…


    The location has very little to do with the the reasonable expectation of privacy. It is entirely subjective. Many people are secure enough with photos of themselves being taken that they don’t need to follow these idiots into the inevitable petty fucking lawsuits that follow.

  17. I don’t see what the big deal is? All he did was use hardware that was accessed by the public to take pictures. Customers expose themselves to video surveillance every time they go into a store with cameras. No one ever sees a lawsuit there. And what about the cameras that can be viewed using google? I’m sure many people have taken screen shots of people on those cams without their knowledge.

    The way I look at it, if your in public expect your picture to be taken and know that it may end up on the internet.

    So FUCK OFF Uncle Sam, go play with your nephew at camp.

  18. for all the folks who are practically calling for his execution – his stuff was taken but he was not arrested, if it was *clear* what laws were broken he would have been arrested on the spot right?

    i’m going to make a prediction, he will not go to jail for this and will likely just need to sign a statement saying he will not do it again and apple will have a new policy on this.

    just a guess…

  19. if you genuinely aren’t bothered by someone taking your picture when you do not expect it, you’re weird in my opinion.

    everyone knows there are security cameras in stores. nobody knows that a random computer in the store is recording your picture and putting it on the internet.

    I’m pretty sure that in tv and movies, most of the time people recorded in them have to sign a release to make it ok to publish their exact likeness.
    this kid basically did the tv/movie part (visual art) without the release or consent or indication that the people were on camera.

    an LED on the computer is a terrible defense. If the camera LED was on and there wasnt any obvious recording software, you would probably assume something was wonky with that computer, not that it was recording you and putting your picture online.

    i hope this guy is terrified and gets in a lot of trouble with fines and service and reputation, but i don’t hope he goes to jail.

  20. Morality and legality aside, what this guy did was pretty impressive. Be glad he didn’t steal anything of more dire importance; an art project is quite a bit more innocuous than credit card theft.

  21. Alongside the whole “They’re in public so they have no expectation of privacy.” thought, what about this:

    Random Person On Twitter:
    @kcimc YES! what about “surprise dude” in turban?

    Kyle’s Response:
    @gleuch surprise sikh/apple technician wasn’t in public, so i won’t post that pic w/out his permission :) leads at cupertino are welcome!

    So he has taken pictures of someone who HAS an expectation of privacy and obviously either disclosed that there was something remarkable (in the literal sense) about the picture, or he has shown other people the picture itself.

    Either way, he was taking pictures of a person who was not in public and reviewing them.

  22. “everyone knows there are security cameras in stores. nobody knows that a random computer in the store is recording your picture and putting it on the internet.”

    Um, hello? How do you think security cameras work, exactly? Do you really think most people in this day and age are still using long-run VHS or something? No, of course not.

    Most of the security cameras/storage these days work in exactly the same way as any camcorder, cell phone camera or webcam. They are stored web-accessible on insecure networks (Remember #antisec much?) or on computers in the back room which untrustworthy people that you will never know about may have access to. Beyond that, the owner of the property can do whatever they like with the footage, including posting it to the internet.

    Anywhere there are security cameras, you should have absolutely no expectation of the right to privacy. Period.

  23. I actually don’t care about the legalities here. He went out of the way to be a douche and he deserves a good scare. I hope the EFF stays out of this one and focuses their efforts on more important things.

  24. @ pt

    Something like this would fall under the category of a tort, not a crime. Are you immediately arrested when you get pulled over for speeding? If you run through a toll do the police come and arrest you?

    I thought it was obvious that breaking the law does not constitute being arrested.

    I’m not exactly calling for an execution but the lack of clear legal thinking by some fellow hackers/makers is troubling.

  25. This artist has gotten so much publicity he surely will not have a problem getting gallery shows.

    Anyway, to the more serious matter at hand, doesn’t it just seem slightly ridiculous that the secret service was brought in. I’m surprised no one has really mentioned that yet. This isn’t some police force we are talking about this is the government. Is this really something they should be involved in?

    Also the artist had prior permission from the apple store employees to take pictures of people in the store. This is will probably cause trouble for Apple.

    I think the Artist should just get a slap on the wrist it was completely innocent, capturing simple moments in time, nothing explicit. The artist was experimenting and nothing more, he wasn’t harming anyone. He was doing what you hardware hackers do, prototyping.

  26. The linked BBC article stated that the feds are investigating under 18 USC 1030, so this really doesn’t have to do with invasion of privacy aspect of the photos, at least from a legal standpoint. The invasion of privacy aspect of the photos is a civil matter and I wouldn’t be surprised to see a suit or two by the photographed individuals.

    18 USC 1030 is all about unauthorized access to computers. A quick breakdown…

    Were the laptops in question protected by the statute?
    – The laptops in question were ‘protected’ as defined in (e)(2)(B) ….” used in or affecting interstate or foreign commerce or communication.”
    Don’t want to get into a con law debate here but by current interpretation of the commerce clause I’m sure this qualifies. If you doubt that, then you need to read up on commerce clause jurisprudence (can’t debate if you don’t educate yourself). The federal government’s broad powers to regulate damn near every thing comes from the commerce clause. It is a logically absurd extension of the terms of the commerce clause, but clearly within the bounds as interpreted by the Court since the New Deal Era.

    Was there a violation of 18 USC 1030?
    – under (a)(2)(C), whoever “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—
    information from any protected computer” has violated the statute.

    He obtained information from the protected computer — the photos.

    The legal questions will revolve around his access to the laptops.

    Was his access unauthorized?
    -If he was polling the laptops remotely and pulling the photos then that would be unauthorized access, but that doesn’t appear to be how the software was operating. The feds might argue that his uploading of photos is some sort of unauthorized access as well (I don’t know about that one).
    -His physical access to the laptop was authorized.

    Did he exceed his authorized access?
    – THIS is probably going to be the legal question that needs to be answered. I don’t feel like commenting, as I don’t know all the facts and this is a fact intensive question. You can make your own mind up.

    Did he INTENTIONALLY exceed authority/access without authority?
    – Congress needs to write clearer statutes. We (citizens) need to elect better representatives. Gonna come down to statutory interpretation, but ‘intentionally’ usually means intending to commit the physical act, not necessarily meaning to commit the crime (see ‘knowingly’).

    Anyway, tired of writing. I actually don’t care what happens to him one way or the other. Lesson here is when you are doing something questionable like this, seek some legal advice. At the bare minimum read up on the relevant statutes. But wanted to point the debate/convo here in the right direction.

    btw if anyone here is a law student, you might think about this as a law review topic. Could turn out to be interesting if they pursue prosecution of this guy.

  27. Another thing to keep in mind is that this is the new job of the Secret Service, they do more than just protect the president. It’s their job to investigate electronic crimes.

    So it’s not like it’s an overly harsh attack on some poor artist. It’s just a matter of who has what jurisdiction.

  28. @Renee Exactly. Once again, answers lie in the statue.

    18USC1030(d)(1) The United States Secret Service shall, in addition to any other agency having such authority, have the authority to investigate offenses under this section.

    Remember people. Congress passes this laws. We elect Congress. We don’t pay attention to what congress does for the most part. That needs to change.

  29. Chances are good those that committed the fraud that wrecked the world economy used computers. Certainly not reading any reports that they may be facing 20 years in prison. Yes this investigation is going beyond the intent of legislation passed in the be very afraid USA post 9/11. Specking of legislation the White House, and Congress is working on new anti hacking legislation http://technolog.msnbc.msn.com/_news/2011/07/08/7043349-us-official-says-pre-infected-computer-tech-entering-country . M4CGYV3R is engaging in comparing apples to oranges when pointing us to the rest room photos, photos in that no one could be recognized as the subject of a photo.

  30. I can’t believe anyone thought this was a good idea. It was going to get negative attention no matter what. DB “artists” don’t get to decide what is legal, moral, right, or unobtrusive.

  31. The issue isn’t one of privacy (At least as far as the USSS is concerned). It falls clearly under 18USC1030 (Cornell comes up in Google, and is a pretty good reference for raw material).

    Unfortunately, this guy is easily nailed under 18USC 1030. It remains to be seen what the prosecutor is going to do with this, but ask yourself a couple of questions (I don’t have the answers, but these are questions that should be asked):

    How would the crime be different if the “artist” had collected the pictures with illicit intent?
    How would the crime be different if the “artist” had collected pictures that the subjects clearly would not have wanted taken?
    How would the crime be different if the “artist” had posted the pictures publicly or kept the pictures strictly for personal use?
    How would the crime be different if the “artist” had accidentally captured sensitive information?

    Some answers would make the “prank” into a clear crime, sure. The big question then becomes when do we draw the line? Do we have any reason to believe this was or wasn’t a test run for the gathering of sensitive information (of whatever type)?

    Dunno… I’m kinda surprised that this guy thought this was an “ok” thing to do, in the first place. I really don’t think any harm was committed, beyond the computer cycle theft, but that theft does warrant an investigation (not necessarily charges).

  32. “mmmm. The tears are so sweet….” Can’t wait to see the pic the intake computer gets of him lol.

    Perhaps if Kyle hadn’t been such an ass about it, I might be more sympathetic.

  33. I will say it again, I doubt he was arrested for ‘taking’ the pictures. His Twitter feed asked about federal code 18 section 1030, computer crimes. If the Apple store did not actually agree to his stunt, then he used their computers without permission; a crime.

    Or maybe the Secret Service is investigating civil crimes like infringing on right of publicity. But I really doubt that.

  34. this is interesting why should the government get involved; if anything they should show up to apple’s doorstep it is their computer their responsibility to keep them safe.

  35. Well then Why didn’t they rightly convict Google For Stealing all your info by deliberately auto hacking wifi with specialized equipment pretending to just roll around taking pics 4 Google street view/map etc

  36. Also seeing people posting about the public thing; well first of all if you watch some youtube people like IJUstine where they go to the apple store film with the laptop webcam and load up to youtube; all those people should be in leagal trouble too???

    You are allowed to take photos of people in public places with exceptions so there no problem; its just some people don’t understand the world of computers fear it and try to get rid of it.

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