News services and commentators (and enforcement agencies, apparently) are all scrambling to figure this whole thing out. It's one of those little hacks that opens up a grab-bag of property rights, privacy rights, and representational politics issues. The idea that a computer is secretly taking pictures of them and sending them to some random dude is making tons of people genuinely uncomfortable. This is true even if it's a public computer, and even if the application asks permission, albiet in kind of a sneaky way.
What's left to consider, skillfully asked in thefactoryfactory's piece on the topic, is the question of how this differs from other, similar situations that set the legal and ethical precedents for it (I didn't see his name explicitly referenced, but his handle is joshuajnoble, so for now, I'll refer to him as Noble). Noble brings up the fact that this is happening in a public space (well, not technically public, but not the private property of the subjects of the photos), and we presumably appear in photos and videos in this kind of space all the time, from security footage to webcam feeds to backgrounds of other peoples' pictures. He also points out that we have our information collected, analyzed, and sold ALL the TIME, usually as statistical information that can be used by marketing people. Yet, a lot of people -- all over blogs, forums, etc -- seem kind of stirred up by this whole thing.
So the ethical question isn't so much a contractual or rights-oriented issue of the letter of the law. It's more about the ethics of consent. If people are all so indignant about this, it means there must be something unique about this particular situation, right? That's not covered by all the related situations that seem to set the precedent?
Noble's approach is illuminating, but also sort of obfuscates the nuance. By breaking the situation down into the various precedents, he shows the various issues at stake, but he fails to account for their convergence in McDonald's work. As I see it, there are three things all in play.
First, CONSENT: if you're going to capture a representation of a person, it's considered ethical to get permission, even if it's just by way of EULA.
Second, VISIBILITY: there's something very intimate about taking a picture of somebody; people don't personally identify with "data" about them, but they definitely identify with an image of their face.
Third, BANALITY: we're all highly sensitive to the fact that computers are everywhere, and we don't really know exactly what they're doing at any particular time; our modern lifeworld is built around this lack of transparency.
So why are these Kyle McDonald photos making so many people exceptionally uncomfortable? I'll let the diagram explain it for you:
Mr. Noble's examples isolate these three aspects and show how each one can be glossed over in the name of an information-rich datasphere. However, when he says, "None of the complaints seem to make very much sense to me," he's willfully denying an important fact: in this case, these issues are all active at the same time.
And it's a rare phenomenon that reminds us just how transparent and visible our personal lives really are.
AFTER-THOUGHT: I'm not trying to argue that this should be illegal in any way, or that it's unethical; in fact, this kind of non-standard boundary case -- this kind of unexpected defensive impulse -- is just what any good art should trigger. I'm just trying to make some more sense of it.
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