ENDitorial: Microsoft's vision for regulation of communication by private companies

By EDRi · July 4, 2012

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Deutsch: [ENDitorial: Microsofts Vision einer Kommunikationsregulierung durch private Konzerne |]

Microsoft is in charge of the “notice and takedown” workstream of the
European Commission-funded and inspired “CEO coalition”. It is therefore
interesting to take a look at what the world will look like if
Microsoft and similar companies are allowed to decide what we are
allowed to do on the Internet and what we are not allowed to do. An
article published on Norwegian news site Dinside gives a valuable insight.

Morten Tobiassen used Microsoft Skydrive to store back-up copies of his
family photos. As a proud father, he posed for pictures with his
newly-born baby daughter and saved copies on Skydrive, only accessible
to his close family.

This, however, was totally unacceptable for Microsoft. The fact that the
photos are unquestionably legal is entirely irrelevant.

What if a paedophile was to gain access to the private photo collection
and then manipulate the image of the three-hour old child into a photo
that would be interesting for other paedophiles? According to the
article, Microsoft has “heard of” photos being manipulated. As a result,
the only option is to ban users from using Skydrive to save their own
entirely legal and inoffensive photos.

As a result of the (in Microsoft’s view) unacceptable risks that Mr
Tobiassen was running by sharing the baby photos with his close family,
he received an automatic e-mail from Microsoft. It gave him just 48
hours to remove the “offending” images and failure to do so would result
in the deletion of all of his Microsoft Live profile content . Mr
Tobiassen also used Microsoft’s service to store a large amount of work
files and presentations – one can imagine that it would have been
somewhat difficult to explain to his boss why the files were deleted due
to misuse of Skydrive for storing perfectly legal and inoffensive
photographs of a child.

Microsoft subsequently claimed that, contrary to what they had said in
their e-mail, they would not have irrevocably deleted the content. They
said “delete” but didn’t mean “delete”.

Of course, according to the terms of service, the company is completely
within its rights to do this, or anything else that it wishes to,
according to the 7 200-word terms and conditions document that users
agree to when they first start using Microsoft Live. This permits
cancellation or suspension of access “at any time without notice and for
any reason”. If incidents like this one are reasonably predictable from
the end-user’s perspective, which means that they will read the 7 200
words before signing up, then they know what they are agreeing to.

So, instead of a society where democratically elected governments enact
laws which are predictable and testable in court, we increasingly have
terms of service which allow penalties to be meted out “at any time
without notice and for any reason.” Our rights to privacy and freedom of
expression are thus increasingly put into the hands of arbitrary
decisions of private intermediaries.

At the same time as facilitating Microsoft’s work on “notice and
takedown”, the European Commission is also negotiating accession to the
European Convention on Human Rights. Article 10 protects the right to
receive and impart information and states that restrictions must be
“prescribed by law” and “necessary in a democratic society”.

Dinside article (only in Norwegian)

Microsoft’s Windows Live terms of service

EDRi-gram: CEO Coalition to make the Internet a safer place for kids

Microsoft & CEO Coalition

European Commission’ activities on self-regulation

(Contribution by Joe McNamee – EDRi)