Kyle McDonald created an art project in which he secretly installed code on Apple computers inside an Apple Store in New York City.  The code operated by taking a photograph every minute and uploading the photos to a Tumblr blog if a face appeared in the photo.  The individuals looking at the computers were completely unaware that they were being photographed.  McDonald intended the work as a conceptual art piece, exploring the human interaction with computers, as well, perhaps, their resultant failure to interact with each other.  The piece, for the time being, is here.

Apple discovered the code on its computers, and an investigation by the Secret Service Electronic Crimes Task Force (ECTF) ensued.  The investigation is taking place under 18 U.S.C. § 1030, part of the Computer Fraud and Abuse Act.  Government officials have seized McDonald's computers and other electronic devices.

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.

Not being terribly familiar with this legislation involved, I took a look at § 1030, and initially had a difficult time understanding exactly how it was that McDonald's art piece fit within the purview of this law.  But there it sits, in subsection (e)(2)(B) which defines "protected computer" as any computer "which is used in or affecting interstate or foreign commerce or communication, including a computer located outside the United States . . . ."  Readers trained in the law will understand this as the broadest kind of shorthand in federal legislation.  Such a definition instantly turns the private computer I write this blog on to a "protected computer" because I have used this computer to "affect interstate commerce or communicate," that is, I have used this computer to send emails and buy items from online retailers.  It also, surely, brings the Apple Store's showroom computers, and likely any computer ever connected to the internet, into a "protected computer."  Even given the far-reaching definitions, I have a hard time believing McDonald should be charged with violating the statute--I believe it would be an overly broad reading which is beyond the intent of the statute, especially considering that McDonald's art piece is not intended to be sold, but to simply exist.  Other lawyers and federal prosecutors, may, of course, have a different view.

When I first heard of the piece, I instantly understood why people would be upset by it.  The piece invades the privacy of those using the computers.  Well, that is, if standing inside an Apple Store one can have an expectation of privacy between her face and a computer when countless individuals and devices with photographic abilities are all around her.  I recoiled at the idea a machine would unwittingly photograph me and then that the image would be published on a website.  But the more I thought about it, the more I realized that it did not matter, at least not to me.  Technology, and the internet, may have given us greater control over our lives, but simultaneously far less control over the publishing of our names and images.  That my name and image appear on the internet countless times in ways both known and unknown to me, is simply reality.  That McDonald has created a work of art that instills such strong reactions in commentators should be seen as a triumph.  We, as viewers, have been challenged, and we are lucky for that.

It is conceivable that McDonald committed torts against those individuals photographed, and perhaps McDonald committed trespass by exceeding the scope of permission within the Apple Store by installing the code.  In my view, to the extent Apple, as a brand, may feel that it was harmed by the art piece, this is Apple's cause to pursue.   A visit to the Secret Service ECTF website furthers this assertion: "The concept of the ECTF network is to bring together not only federal, state and local law enforcement, but also prosecutors, private industry and academia. The common purpose is the prevention, detection, mitigation and aggressive investigation of attacks on the nation's financial and critical infrastructures."  Until the United States is a far safer place than it is today, I hope that federal investigators will find more worthy causes to pursue.

Finally, it bears noting that very little of the commentary has bothered to mention McDonald's First Amendment rights as an artist.  In as much as this piece has upset people (and Apple) and may or may not have skirted the law, freedom of expression remains an important consideration as well.


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