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Commentary on the Legality of Microsoft's Data-Harvesting in Windows 10

Delicieuxz

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This is a perhaps a more eloquent and elaborated presentation of what I was wanting to speak in the thread 7-times Microsoft MVP finds Windows 10 Enterprise collects too much data at minimum, calls for legal action.

 

The relevant links from that thread are these:

 

Windows, Spying, and a Twitter Rant

Screenshots showing high levels of contact with Microsoft servers after employing all efforts to stop data-transmission

Additional screenshots of further Microsoft server activity, discovered later

 

 

I would like to give some personal commentary to the subject that those links are about.

 


If a politician steals millions of taxpayer dollars, which is only a few cents from each person, they go to jail. So what about when Microsoft is continuously piggy-backing on everybody's PC systems to enrich themselves? Microsoft is using people's own hardware, software licenses, electricity, computing power, data, time, and private activity for non-sanctioned business use, and the profit of Microsoft's executives.

 

Microsoft's data-mining is no different than a virus that is distributed to people's PCs to min mines digital coins using their CPU and CPU power, with the earnings being deposited in the e-wallet of the virus' creator. You could also look at it like someone setting up a mining farm, but connecting all their systems to their neighbour's electricity supply - except that in the case of Microsoft's data-mining, they are not using their own hardware, software licenses, and everything else, but those of the people whose systems are sending data to Microsoft... and so the coin-mining virus is a more suitable analogy.

 


Every aspect of Microsoft collecting data from people's PC systems and personally-owned Windows licenses is already established in law as being illegal. But some people are taking a bit of time to work through the understanding that leads to that recognition, because software-license owners are traditionally just not on the lookout for stuff like this and usually just focus on using their software, and not technical legal aspects or ethical implications behind its operation. Also, Microsoft being a well-known company whose products people have used for years throws a lot of people for a loop, I think, because they are used to just assuming that whatever they're doing must check out, somehow. Well, this doesn't. It's illegal from head to toe.

 

It's theft, but it's also Unjust Enrichment - which is the situation where one party is making profit for itself at the unjust expense of others. A current UE case involves ZeniMax targeting Samsung for Unjust Enrichment over VR technology that ZeniMax claims belongs to them but is profiting Samsung.

 

If you unilaterally utilize somebody property, or copyrights to make yourself money, who is legally entitled to the proceeds? Legal entitlement goes to whom the required property and rights that the profit is dependent upon belong to. 

 


A person who argues that by using Windows 10 a person agrees to send Microsoft their data would be wrong, because sending Microsoft data is not essential to making use of the software functionality that was paid for when buying a Windows license, and so conditioning usage of the paid-for functionality on unrelated and Microsoft-profiting access to personal and private data would not pass the Reasonable Person test.

 

Also, such an argument would be in ignorance that the data sent to Microsoft doesn't come from only the owned software license, but also a person's personally-owned  hardware, electricity, computational time, uniquely-generated data, and personal / private activity - things for which there can be no entitlement for Microsoft to use any more than a car salesperson can claim that if you buy a vehicle from them, then they have access to use your garage and everything in it, including the power source hooked up to it.


Additionally, the idea that Microsoft could exert any authority over an instance of the Windows OS after they've sold the license that represents the OS instance to somebody is a violation of the first-sale doctrine, which makes clear that such authorities and privileges pass to the owner of the property, in this case, the owner of the software license and the instance of the OS it represents, once it is sold. And the SCOTUS has just made a unanimous, 8 - 0 in favour, re-affirmation that decision-making rights leave from the seller to the buyer at the first-sale of an item.

 


I fully believe that seven-times Microsoft Most Valuable Professional award recipient Mark Burnett is right when he says "What we need to do is fix this, even if that means getting lawmakers involved. It can only get worse from here". Though, I believe it is important for big reasons beyond simple control and security of the OS.

 

Microsoft is stealing digital property, computational power, and electrical resources from everybody, and is making non-licensed usage of people's hardware property, the housing of that hardware, and are exploiting people's personal behaviours while those people are staying within their personal and private spaces (non-online activities). And in the process of violating Windows license-owners' rights over their property, resources, time, and behaviour, Microsoft is unjustly enriching its company and executives.

 

If action is not taken against those who commit these violations, then all established societal and legal notions of what property is, who possesses decision-making rights over it, how much a person can use their position to unfairly exploit others against their natural desire... then all existing understanding of those things becomes argued against, and a precedent is established where a person's property is anyone's to use by unilateral decision, and a seller of goods can enslave and overrule aspects of people's own private lives and property as part of their conditions for their sale. Effectively, a sale becomes not a transaction of goods for money, but a mechanism for enslavement and subjugation, with the seller acting as if they held a commercial license over a plethora of the buyer's possessions and entitlements.
 
A person whose personal and private PC system environment (non-online spaces) is sending data to Microsoft through telemetry, data-collection, and analytics of their behaviour is an employee of Microsoft who does not get paid, or receive any company benefits.

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