Let’s be clear about the known facts:
1) McDonald claims he received permission from a security guard, but I didn't see any evidence or video proof to support this assertion.
2) McDonald claims he received permission from the security guard, but he fails to provide any information for what he was approved to do.
-Clearly, filming from a public space, outside and apple store through a window and into an apple store is not really the central point here (policies of this nature would be the purview of the mall – and that's not even clear!)
- McDonald, apparently, was filming within an apple store, which, correct me if I am wrong, is not technically a public space since it is a commercially zoned space, paid for by apple.
- McDonald provides no information to suggest that he received authorization to film apple customers, likely a violation of apple store policy and security regulations. Last I checked, I didn't see a sign informing customers that by entering this apple store you waive your right to protest apple’s right to use your image for free. Ya, that’s right cause it doesn't exist. Apple security monitoring of clients in stores seems pretty straight forward and in line with any other retail outlet.
Accesses: I would argue it’s not an issue of access but the fact that he installed a program on these computers. Even if the terminals did not require elevated privileges (which you will see apple change in the coming days), it is the unauthorized introduction of a program, which violates the law. Again, access doesn't mean permission to augment settings.
Additionally, it is interesting to note “12 states require, under most circumstances, the consent of all parties to a conversation. Those jurisdictions are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington.” It is conceivable that the spyware in question infringed upon privacy laws in these states. That would be another charge.
Photobooth has little to do with this situation as far as I can tell. Did customers agree to the service agreement or terms of service when demoing the computer? Answer, no. Because apple had no intention of allowing those pictures to be uploaded to the Net, right? Did these customers sign or digitally endorse a new kind of privacy policy that was presented by apple in order to use the demo computer? Answer, no. I mean really. Even if they did, would apple have been in a position to inform customers about potential spyware applications that were maliciously added to the demo computers? Answer, no. I mean come on.
This is pretty clear, cut and dry. Whether or not McDonald is using art to cover his tracks or whether he is really that ignorant is best left to the courts. I am sure he can plead out, but he definitely gets zero sympathy from me.