Point–Counterpoint on Windows 10

Police officers monitor CCTV screens in the control room at New Scotland Yard in London. Photograph: Kirsty Wigglesworth/AFP/Getty Kirsty Wigglesworth/AFP (source)

by Gaius Publius

I got a very small amount of very energetic pushback from one corner of the consumer tech industry — the part that popularizes and teaches the use of consumer technology — regarding this article about whether Windows 10 is spyware. (My opinion is still that it is, but that's a function of your definition of "spyware." I'll offer my definition in a later piece, since I don't want to kitchen-sink this one.)

I have to say, I found the pushback interesting for a number of reason. One, that while it was genuinely worth considering, it was angry; not just reasoned, angry. And the anger was not just directed at me, as you'll see below, but directed at anyone who doesn't like the intrusiveness of this new operating system (sorry, "service"). Second, I found it interesting that the pushback seemed almost completely unaware of, and therefore dismissive of, the political dimension of all forced (or highly incentivized) data sharing.

Let me explain what I mean by "political dimension."

Do Cops Lie Under Oath? Your Answer Defines You

For example, would you put any of your data on "the cloud"? If you would, you don't see a problem with corporate access to everything stored there. If you wouldn't, well ... you're suspicious, to say the least, of corporate good intentions. In the tech world, that's a pretty big divide. Of those who aren't suspicious, some understand why people might be, and others, the angry ones, are highly upset that the critics are "dumb enough" (my phrase) to fall for "tinfoil" arguments (their phrase).

Because companies would never misuse your data, right? They may "blunder" (get hacked, say), but they're not ill-intentioned. After all, this is America, not some Third World dictatorship. And those who take, well, America, at face value, even though admitting some flaws, are a world away, a divide away, from those who just don't see the world as the one presented on TV. That's a quite a divide, and it leads to one side using dismissive phrases like "conspiracy theories" and the other side using terms like, well, "politically naïve."

Now let's look at issue in a more general context. In the same way, there's a huge divide between those who think cops almost never lie under oath when giving testimony — their world is the world of Law & Order, for example — and those who suspect (or think they know) that cops almost always lie under oath to secure convictions they can't secure any other way.

Let's run a test. Ask yourself these two questions before you read on:

1. Do you think cops routinely lie under oath?
    
2. If your answer is No, what do you think of those whose answer is Yes?

Done? Now consider, with your two answers in mind, the following, via the New York Times:

Why Police Lie Under Oath

... That may sound harsh, but numerous law enforcement officials have put the matter more bluntly. Peter Keane, a former San Francisco Police commissioner, wrote an article in The San Francisco Chronicle decrying a police culture that treats lying as the norm: “Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.”...

A web search produces a lot more like the above. Is this thinking "tinfoil"? Not if former Police Commissioner Peter Keane, quoted above, is right. Yet many today would call this thinking "decidedly un-American" (another term that needs more careful definition). That's part of what I mean about the political dimension — not all, but part. Trust in our governance and governing institutions, in their right to be presumed well-intentioned, is a political position. As is dismissing distrust in others.

Keep all this in mind, both the technical aspects of the Windows 10 argument and the anger, as you read on.

The Pro-Windows Pushback

I want to start with the pro-Windows 10 pushback by offering one example below from a ZDNet writer, just to give you a taste of the way the discussion is going. No, I'm not singling out one writer, just offering an instance of several I could have chosen. And no, I'm not saying the writer is wrong because of the tone. I am saying, though, that the facts do need examining, and that examination is not a breech of good sense. The fact that quite a number of people are examining this issue seems to be a good reason for having it.

As the ZDNet writer quoted more fully below admits:

There is apparently a growing and very vocal population of people who believe that Windows 10 is basically a 1984 telescreen come to life.

"1984" is a reference to the "Big Brother is watching you" book and film. There is indeed a "growing and very vocal population" that's suspicious of Windows 10. Some think that using Windows 10, Microsoft is watching them. And some worry that Microsoft has set up Windows 10 so that they could be watching them if the company wanted to. The first assertion needs proving, but the second is almost a given, as we'll see. Is it "tinfoil" thinking to notice that?

Now a more complete quote from the piece referenced above. It starts:

No, Microsoft is not spying on you with Windows 10

The Windows 10 privacy agreement doesn't mean Microsoft is secretly stealing the data from your hard disk. Where do people come up with these crazy ideas?

Buy tinfoil futures.

I'm dead serious. There is apparently a growing and very vocal population of people who believe that Windows 10 is basically a 1984 telescreen come to life. They are convinced that with Windows 10 Microsoft has built a spying apparatus not seen since the height of the Cold War, scraping up every detail of your life and feeding it back to Redmond for who knows what nefarious purposes.

They're going to need lots of tinfoil.

They're also either wildly misinformed or deliberately agitating. Unless, of course, they're just crazy, which is entirely possible based on some of what I've read.

But most importantly, they are wrong, terribly wrong. And they're being whipped into a frenzy, or at least passively aided by the tech press. That group unfortunately includes ZDNet, which earlier this week unquestioningly repeated this incendiary allegation, posted on Reddit by someone who claims to be affiliated with an obscure torrent tracker, iTS:

Microsoft decided to revoke any kind of data protection and submit whatever they can gather to not only themselves but also others. One of those is one of the largest anti-piracy company [sic] called MarkMonitor. Amongst other things Windows 10 sends the contents of your local disks directly to one of their servers.

That's not true. It's wildly at odds with the facts, even. I keep tabs on a handful of well-established torrent sites, orders of magnitude larger than the ones complaining here, and none of them seem to have a problem with Windows 10.

There's literally no basis for that statement in fact. And yet you read it here. And on dozens of other sites, unfortunately, where a single lie gets repeated often enough to seep into the collective unconscious.

The bizarre belief that Windows 10 is a spying tool keeps popping up among conspiracy theorists. Via email, a reader sent me a link to this rant by an alternative medical practitioner who apparently is also an expert on the law and IT:

Windows 10's new license agreement ... gives Microsoft permission to Hoover up every particle of data on a doctor's hard drive. This will include any confidential patient-doctor emails that are stored there, any reports, any bills, and any short notes to staff through intra-network messaging (for example: "Spoke to Tom Mypatient today re gender dysphoria and desire to transition to female. Pls follow up with referral.")

No, it doesn't, doc. Here, take a sip of this calming tea and let's talk, OK? And let's get that torrent dude in here, too, because he needs someone to explain what's really going on. ...

I'm going to look at just two of the points made above and leave the rest for later. Do read the whole piece, though; I'm not saying it has no value, but the value is in evaluating its arguments on a factual basis, not in getting caught up in the ... well, politics of what's an OK question to ask, and how to evaluate anecdotal evidence that something is fishy with Microsoft's new operating "service."

Is Windows 10 Spyware? What Does the Privacy Policy Allow?

Because I don't want to turn this into an essay, let's look at just these aspects of the new Windows 10 operating system ("service") — concerns about the privacy policy, and concerns about interference with pirated and "unauthorized" software and hardware. (Yes, Windows 10 cares about "unauthorized hardware.")

First, about that new privacy policy, from another, more suspicious, technology writer. The piece is called "Windows 10: Here are the privacy issues you should know about." One of the issues discussed is this:

Microsoft can disclose your data when it feels like it

This is the part you should be most concerned about: Microsoft’s new privacy policy assigns is very loose when it comes to when it will or won’t access and disclose your personal data:

We will access, disclose and preserve personal data, including your content (such as the content of your emails, other private communications or files in private folders), when we have a good faith belief that doing so is necessary to protect our customers or enforce the terms governing the use of the services.

I’m not suggesting Microsoft and its lawyers are alone in making provision for such sweeping power over your data, but we should all be very careful about relying on the “good faith” of corporations. I’m not even sure such a thing exists.

Again, note that the limits don't turn on absolute restrictions, but on belief in Microsoft's corporate "good faith." That belief is ultimately a political act. The ZDNet writer above appears to have that belief; the medical doctor he responds to in his piece — by saying, "No, it doesn't, doc. Here, take a sip of this calming tea and let's talk, OK?" — doesn't.

The privacy language allowing Microsoft to "access, disclose and preserve personal data, including your content (such as the content of your emails, other private communications or files in private folders)" is pretty clear to me, and pretty scary. And I've already had a "calming tea."

Do Torrent Sites Have a Problem with Windows 10 and Its User Agreement?

Now let's look at concerns about Windows 10's search for and treatment of pirated software and "unauthorized hardware." Torrent sites are part of file-sharing peer-to-peer ad hoc networks that facilitate downloads of programs and data files, including legal and illegally obtained copies of software, games, music and movies. The ZDNet writer, who thinks people should not question Windows 10 in the way they do, wrote this (also quoted above) about whether torrent sites are worried about users running Windows 10:

That's not true. It's wildly at odds with the facts, even. I keep tabs on a handful of well-established torrent sites, orders of magnitude larger than the ones complaining here, and none of them seem to have a problem with Windows 10.

Why would torrent sites even consider worrying about Windows 10? Because they worry that the operating system (operating "service") could inspect users' hard disks, check to see if downloaded software and other files are "legal," and if not, delete or disable the files or programs; then report back to Microsoft anything it can find about how those files or programs were obtained.

In other words, to use the vernacular they worry that Windows 10 will spy on users, delete files it considers illegally obtained, then rat out the users to Microsoft and rat out torrent sites that distributed the files to the government and copyright holders. Our anti-tinfoil writer thinks this is a foolish worry. Do you think Microsoft is capable of this behavior? Isn't that like asking if you think most cops lie?

So what's actually happening with torrent sites and Windows 10? First, there are stories of software already being deleted and/or disabled, but they are anecdotal at this point. The reports are from small venues and haven't been verified. Second, a web search on whether torrent sites are concerned about the possibility produces a lot of articles like the following:

Windows 10 users are being banned from torrent sites

Some torrent websites are banning Windows 10 users over fears that the operating system is sending identifying information back to Microsoft.

Piracy sites are preventing users of Windows 10 from using their trackers. These are the servers that allow all of the computers downloading files using torrents to talk to one another, which allows them to find and request the files that they need. Without trackers, torrents won’t work.

Pirates have released statements that say, “Windows 10 sends the contents of your local disks directly to one of their servers.” They also claim that Microsoft is working with a company called MarkMonitor to identify people who are downloading from the internet.

There are genuine concerns that Windows 10 sends personal information about computers to Microsoft, even if users have changed all their settings to tell it not to do so. But there is less concrete evidence to support the pirates’ most worrying claims.

The controversy began because of a line in Microsoft’s service agreement. This allows Microsoft to issue updates that will stop users “playing counterfeit games,” according to TorrentFreak.

Notice that "MarkMonitor" is mentioned in the original writer's piece above, who also quotes his own publication as making this claim. The writer says his own investigations say otherwise.

Are torrents and torrent trackers really banning Windows 10 users? We're in he-said, she-said territory. Should they ban Windows 10 users just in case? That turns on what Microsoft decides to make of the language in its new User Agreement. One tech site characterizes that language this way:

Microsoft can disable your pirated games and illegal hardware

Updated terms let Microsoft invade your Windows 10 computer in search of counterfeit software

Microsoft’s updated End User Licence Agreement [EULA] terms and conditions let it disable any counterfeit software or hardware and, if you’re running a Windows 10 computer, you’ve just agreed to them.

Section 7b – or “Updates to the Services or Software, and Changes to These Terms” – of Microsoft’s Services EULA stipulates that it “may automatically check your version of the software and download software update or configuration changes, including those that prevent you from accessing the Services, playing counterfeit games, or using unauthorised hardware peripheral devices.”

The list of services covered by the agreement doesn't explicitly include Windows 10. However, it does include your Microsoft account, which is an extensive part of the Windows 10 experience, as well as core features like Cortana – and that implies Redmond can disable any games you’ve pirated or devices you’ve "unlawfully" hacked. Enable Cortana (which pretty much everyone using Windows 10 is going to do) and you're subject to the services agreement.

While it’s incredibly clear what Microsoft means by “counterfeit games”, the wording “unauthorised hardware peripheral devices” is a little hazy. Does this mean Microsoft can now block uncertified PC or illegally modified Xbox One and Xbox 360 controllers? Furthermore, Microsoft’s agreement doesn’t state whether it will also disable other counterfeit software, such as cracked versions of Office or Adobe Photoshop, or if it only cares about pirated Microsoft games.

I’ve reached out to Microsoft for a comment about these unanswered questions and will update you when more information becomes available. (UPDATE: More than five days after we initially published this story and we still haven't heard anything back. If anyone from Microsoft reads this, please get in touch!)

More at the link. Is there a problem now with pirated software and "unauthorised hardware peripheral devices" (whatever that means)? Some say yes, some say no. Could there be a problem in the future? Looks like it to me, depending on which of its "rights" Microsoft decides to exercise. Do you trust Microsoft? Should you?

Why Does This Matter? The PC Counterrevolution

Why go through all this? Because Microsoft is one of the largest tech companies on the planet, its operating systems are literally everywhere, and Windows 10 is a revolution in operating systems. It phones home with data no one can figure out, and has Privacy and License agreements that grant rights to the company that are both extremely broad and unprecedented.

But most of all, Windows 10 is not a program per se — not an operating "system," but a "service." The implications of that are huge. In the days of IBM mainframes and VAX terminals, what you had on your desk at work was one tentacle of an octopus owned and run by your company. You used what you were allowed to use. You were watched if they wanted to watch you. Your data was never just yours.

Then came the "PC revolution" — the revolution of the personal computer, a machine that was yours completely. You owned it, you owned the software on it, you managed it, and no one saw what you did with it but you, if that's the way you wanted things to be.

We've been eroding the "personal" (meaning, private) aspect of personal computing for a while, ever since the widespread use of the Internet, but that erosion has accelerated. Certainly, using "the cloud" means you voluntarily surrender the privacy of any data you put there. But by voluntarily upgrading to Windows 10, the rest of your surrender — the surrender detailed in my original article— may never be voluntary again.

In the Tarot, The Fool is a "path to wisdom" card.

If that was the PC revolution, this is a counterrevolution. Welcome back to the corporate-controlled computer, disguised as something you own. What will those corporations — Google and Apple are sure to follow suit — do with all that intrusive power and control? I don't think you need a tinfoil hat to worry about this, and on that I respectfully disagree with those who do.

If we're going to hand out the "who's being foolish?" card, perhaps it should go to those who choose to ignore the implications of this counterrevolution — not to those trying to think it through, as politically out of the mainstream as those thoughts may become.

GP