Comment by philsnow | Hacker News Reader

Comment by philsnow | Hacker News Reader

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As a privacy enthusiast, I am very mildly (because I was not directly affected) annoyed that you undertook this project. I see your post discussing it as tacitly attempting to move the overton window in a direction you want it to go.

> Whether it was ethical or not is a much more complicated question, and something that we each have to decide for ourselves.

(from the article:)

> What was probably 10 minutes felt like 30.

I don't know if it "felt like 30" because the task felt boring or because you were concerned about being caught, but if it's the latter then I think you know that it was at _least_ on the far side of "ethical".

> I understood (and still believe) what I did was legal.

(from the article:)

> After the one-minute-exhibition ended, we made a staggered exit from the store

Also doesn't seem like you really thought it was totally legal if you left the store that way.

Most people in this thread are addressing the legality/morality of installing an app on all those computers in the Apple Stores, but what about the unauthorized use of all those people's likenesses? I'm not familiar with New York state law, but in a lot of states, you can't use photos of people commercially without their consent.

You make a living from art projects. Maybe you didn't make any money from this art project, so you didn't directly profit from the use of these photos, but I would think a reasonable person would see your online portfolio as an advertisement or promotion of your services.

In the original article you talk about how it should have been alright to take the photos:

> I tried to think of a busy public space full of computers, and the Apple Store seemed so obvious.

Apple Stores are quite clearly not "public space", they are private spaces that they allow most members of the public access to. If the photos were taken with a telephoto lens through the glass walls, they'd be totally in the clear (though IANAL). Still creepy, but legally in the clear.

> Apple Stores are quite clearly not "public space", they are private spaces that they allow most members of the public access to.

The definition of "public" vs "private" in the context of property is fairly distinct from the one used in the context of privacy law. Obviously an Apple store is a privately-owned property, but in terms of privacy law it's very overtly public - you are allowed to take photos there, and people inside an Apple store would not (or at least, should not) believe that they are "in private".

In short, private property (like retail stores) "generally open to the public" allows photography by default, and you're good to go unless there's a "No photos" sign put up by the proprieter.

> If the photos were taken with a telephoto lens through the glass walls, they'd be totally in the clear (though IANAL).

For the sake of discussion on this point, let's pretend that the Apple store is unambiguously private in all senses, like your residence would be.

I believe that in the relevant jurisdiction taking photos of it would be legal under the conditions that:

(a) the photo was taken from somewhere public

(b) the owners/occupants of the building made no attempt to prevent it

(c) the photo is not of a "sensitive" location (bedroom, bathroom, changing room, etcetera)

(d) the photo does not contain genitalia (this is illegal to do without consent, even in completely public scenarios)

(e) the photo was taken with ordinary photographic equipment (so no zooming in from 10km away)

So obviously the first four are no problem at all, but a telephoto lens specifically might get you in trouble on point (e). Not too relevant to the Apple store, but it's an interesting point of discussion.

Thanks for spending time thinking through some of this :)

I think it "felt like 30" because I was nervous. Not because I thought it was illegal or unethical, but because I was breaking social norms. I see this as different from acting "unethically", and closer to what Erving Goffman would call a "breaching experiment".

I definitely did not want to raise any flags in the store itself, hence the staggered exit and furtive behavior. Again, not because I thought it was illegal or unethical, but because there was a certain way I wanted to see everything play out. If I got kicked out before I had a chance to exhibit the work, it would have made for a distractingly complicated story. I think this point is difficult for some folks who can only see this as a prank or security research, and don't understand how artists think and work and craft stories.

Regarding the question of what constitutes "public space" and legality of of using peoples likenesses for profit, there are some other great responses in this thread which explain the details (like the one here by sellyme). It's interesting for me to hear how most folks on HN assume that photography in the US operates more like the EU.

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