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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)
http://www.dinside.no/825641/morten-fikk-48-timer-paa-aa-fjerne-bildet

Microsoft's Windows Live terms of service
http://windows.microsoft.com/en-US/windows-live/microsoft-service-agre...

EDRi-gram: CEO Coalition to make the Internet a safer place for kids
http://www.edri.org/edrigram/number10.5/ceo-coalition-freedom-of-speec...

Microsoft & CEO Coalition
http://www.microsoft.eu/digital-policy/posts/making-the-internet-a-saf...

European Commission' activities on self-regulation
http://ec.europa.eu/information_society/activities/sip/self_reg/index_...

(Contribution by Joe McNamee - EDRi)