Are Microsoft violating Sections 1 and 3 of the Computer Misuse Act 1990 ?

[Mark Greaves (PCNetSpec)]

If Microsoft are now admitting that even if you disable all spying options in the "privacy" section of Windows 10 it STILL continues to report home .. effectively admitting that the privacy settings are misleading and meaningless, and that tracking CANNOT be disabled:
http://www.forbes.com/sites/gordonkelly/2015/11/02/microsoft-confirms-unstoppable-windows-10-tracking/

Does that mean they're in violation of Section 1 and 3 of the Computer Misuse Act 1990:
http://www.legislation.gov.uk/ukpga/1990/18/section/1
and
http://www.legislation.gov.uk/ukpga/1990/18/section/3
?

.

[Mad Penguin]

Mmm.

I think anyone who chooses Windows 10, given the underlying current of Windows exploits, might have a hard time trying to argue their case based on an expectation of privacy ... 

[Mark Greaves (PCNetSpec)]

Not the point .. acceptance of their EULA and privacy agreement doesn't mean **** if they're breaking the law.

No licence agreement overrides the law.

I didn't ask if anything will happen or not .. I simply asked if they were in violation of those acts
(As I doubt f we have an army of lawyers here, and they'd hedge their bets anyway .. I was really asking people reading this if THEY reckon they are or not)

[Mad Penguin]

Mm, I think it's case of a "how good is your lawyer" or "what's your point of view".

(2)This subsection applies if the person intends by doing the act—
(a)to impair the operation of any computer;
(b)to prevent or hinder access to any program or data held in any computer;
(c)to impair the operation of any such program or the reliability of any such data; or
(d)to enable any of the things mentioned in paragraphs (a) to (c) above to be done.

Now to me, that would apply to any vendor supplying a computer with any Anti-Virus package pre-installed ...
Indeed I would argue that you could apply 2(b) if the AV software was actually effective.

But specifically if M$ advertise, "this is how the software works", and you can choose to use it or not .. I would have thought a good barrister could easily argue they're not breaking the law, even before starting on the benefits to the consumer of having Windows phone home ...

I could sort of imagine a large chap in a wig and red gown saying "if you don't like the policy, don't use it ...", while the M$ barrister waves his old-school-tie ... (indeed slightly different context, I've seen it happen ...)

[Mark Greaves (PCNetSpec)]

1 Unauthorised access to computer material.

(1)A person is guilty of an offence if—

(a)he causes a computer to perform any function with intent to secure access to any program or data held in any computer [F1, or to enable any such access to be secured]F1 ;

(b)the access he intends to secure [F2, or to enable to be secured,]F2 is unauthorised; and

(c)he knows at the time when he causes the computer to perform the function that that is the case.

So if Microsoft says (or strongly suggests), "install Win10 you can choose what's sent to us with the privacy settings", then only AFTER millions have done so admit the privacy settings don't stop it phoning home .. that doesn't constitute 'securing unauthorised access to computer material, and causing the computer to perform a function to access programs and data' .. or they going to say they didn't know about it at the time (so it's reporting everything back home *except* the privacy settings) ?

People installed it because they were told by Microsoft that the security settings would effectively allow them to stop access .. so if they change the settings they are revoking authority, any access beyond that is unauthorised. I can see no other interpretation.


2(b) in your quote "to impair the operation of any such program or the reliability of any such data" .. Microsoft have already said they have the ability to disable software at will .. but the minute they do.......


Don't get me wrong, I don't expect our government to jump all over Microsoft for spying on us .. Microsoft would immediately fight back with parallel questions about what the government are diong .. nor do I particularly think the EU will do much beyond possibly becoming duplicitous by sharing in the money via fines (like they did over the IE thing).

[Mad Penguin]

Given the government's spying activities, the law in this respect is morally bankrupt. Within this context, and taking into account that Windows users should not have any expectation of privacy given well documented exploits and breaches, I think trying to argue a point of law is unlikely to hold much water .. but it still comes down to perspective.

[Mark Greaves (PCNetSpec)]

LOL .. ask a politically loaded legal question, then act all surprised when people answer like lawyers and politicians and refuse to get off the fence

Okay from my 'perspective' they're clearly in breach of at least section 1 (cut and dried), and possibly section 3 (though that's less clear cut).

There, now I'm down off the fence would you like a sandwich fetchin

[Mad Penguin]

Ok, I think the Act is b******s and should be scrapped, so with this in mind I'd drop down on the other side ... 

The point of the Act is to give the establishment a legal means to "get" people who don't agree with them, not to attack companies like M$. With this in mind, I'd find it both pointless and hard to support the use of such legislation in any context.  It's a bit like giving everyone a 'smart' gun, so that everyone feels 'safe' and that they have an equal say .. without realising that if they're not a part of the establishment and they try to use the gun, it'll blow up in their face.