Microsoft Won't Use The Xbox One To Become 'Big Brother' (But Won't Tell Us How)

With the announcement of the Xbox One there's been a large number of reports and rumours circling about what this new device means for privacy. Microsoft has already stated that the Xbox One requires that you use Kinect while playing, and that one cannot be used without the other, which has led to some fair (but slightly hysterical) headlines about the Xbox One being a 'twisted nightmare' or fitting the description of a 'surveillance device'. But what legal responsibility does Microsoft bear for a device that could potentially spy on consumers and use that info for targeted marketing?

"I think most of these reports are premature," says Michael Fraser, a professor of law and Director of the Communication Centre at the University of Technology, Sydney.

"We don't really know enough about whether or not these devices can be disconnected. We don't have enough information.

"I don't think we have enough information on how it all works yet. It's not really clear."

Microsoft explained to us earlier that the new Xbox won't be spying on us, won't be watching constantly, and confirmed that the device could be switched off. The Xbox One can be switched off, that's almost too obvious to report, but in the midst of 'big brother' paranoia stories it's worth reinforcing.

"It is not always watching or always listening," said a Microsoft rep.

"Yes, you can turn the system completely off. This would use no power and turn everything off. We’ll share more details about how it all works later."

For some, the idea that the machine can be turned off isn't enough, and rightly so. The fact remains that the Xbox One requires Kinect to function. If you're using the machine, Kinect has access to your living room, and could potentially spy on users. That does raise issues.

But according to Michael Fraser, Microsoft would require explicit consent for any information it potentially collects.

"Microsoft wouldn't be allowed to collect any information without informed prior consent," he explained. "That would be in breach of the Australian Privacy Act."

Microsoft plans to add privacy settings, and is keen to assure consumers of its expertise in this area. Microsoft is claiming you will be informed, that you should have absolutely no worries about privacy issues.

"We know our customers want and expect strong privacy protections to be built into our products, devices and services, and for companies to be responsible stewards of their data," a rep told Kotaku US. "Microsoft has more than 10 years of experience making privacy a top priority. Kinect for Xbox 360 was designed and built with strong privacy protections in place and the new Kinect will continue this commitment. We’ll share more details later."

'We'll share more details later'. It's a common refrain, and one Microsoft has used when discussing any of its controversial additions to the Xbox One console. Michael Fraser himself didn't want to commit to any overall judgement of Xbox One until Microsoft released more details on how it will regulate the Kinect, and how it will inform consumers. Microsoft's refusal to share any concrete details about Xbox One isn't doing the company any favours at this stage — and allows rumours to spread.

It's strange. Perhaps privacy questions, alongside other issues like used games, haven't quite been ironed out yet — perhaps Microsoft simply hasn't decided exactly what it intends to do with all this information, or how it intends to regulate it.

I think, more than anything, this is worrying. The silence, the lack of details the 'we'll share more detail later' gambit. Why don't they share the details now, reassure consumers and stop the headlines in their tracks?

Microsoft's reluctance to openly discuss this issue is potentially the most damaging aspect of this conversation. Hopefully these 'details' will be made available sooner rather than later.


    "Microsoft’s refusal to share any concrete details about Xbox One isn’t doing the company any favours at this stage — and allows people to jump to all kinds of premature conclusions and act like the sky is falling"

    fixed it

      I think M$ should have the benefit of the doubt at the moment. How much do you store on your windows PC that could be stolen by them?

        I wonder how many people complaining about this own an iPhone. You wanna talk about no privacy, if you commit a crime the police can use the data on your phone to know your movements and location and your messages sent. Big Brother is already here.

          I asked this same question on Twitter a few days ago and the response was basically "well Apple doesn't say that it's always listening so I assume they're not".

            You could tell if they were always listening because the thing dies in the ass after ten minutes of sustained activity. :P

    'Prior consent' could simply come in the form of part of a user agreement that you have to agree to in order to use the console.

    Regardless, MS have already lost me. What will be interesting to see is if their new target market is happy to accept things like this.

    The direction MS are going in with X1 is very reminiscent of the dystopian world depicted in Charlie Brooker's Black Mirror, specifically the episode "15 Million Merits". Very much worth watching.

      I was thinking more 1984. regarding those TVs everyone has in that that also record people. (I cant remember what they are called in that book)

      And yes all it would take to secure consent would be to slip it into a Terms of Use agreement or a EULA or something (no one reads the damn things anyway). This isn't very encouraging.


        While 1984 is one of the most brilliant novels ever written and no doubt influenced Brooker, do check out Black Mirror if you've not seen it.

        The parallels are eerily similar and it relates far better than 1984 due to being written only a couple of years ago and Brooker being a former games journalist - the interface, electronic avatars and points/achievements systems used in the episode are strikingly similar to those of the Xbox 360.

        The points that the episode makes have become even more poignant since the X1 reveal.

        no one reads the damn things anyway

        I do because while the whole document may not hold, individual elements can be. For example, when I find anything resembling EA's do not sue clause I avoid it.

        Granted such causes I'm protected against thanks to the Australia Consumer Law (a co-worker of mind pointed out that one can wave a right but not a law hence how such clauses in EULAs can be nullified but the rest remain), but I refuse to accept such agreements out of principle.

        Anyhow, the reason why I read them? You never know what they hide in the privacy clauses until you read them.

          See I would expect them to put it into the xBox live terms of service - meaning that if you want to use the console at all (hello connection requirements!) you would have to consent, or have a very expensive black brick in your living room.

          Course the easy way around that is just not buy an xbone.

          You read all of them? Didn't someone work out that that would take between 30 and 60 working days to do each year?

          Anyway, we're not only protected by the consumer law, but also the common. Unconscionable terms and all that.

      This collection of images form the episode reflect what I am talking about well -

    The clock struck thirteen.
    Winston looked up at his xbox 101 and smiled '2+2 does equal KFC!'

    Next announcement will be that you MUST have a Gold Live subscription in order to turn on your Xbone

      More likely would be "you must have an XBL Gold sub to use the console/game's cloud features".

    on the off change a new Banjo Kazooie game gets released (only way id ever buy the xbox one, same reason i brought the xbox 360) im just gonna have a Maniquin in the corner and the xbox one kinect can stare at that all day long

    FFS! It's only been 9 days since the One reveal. The release is presumably 4-6 months away. E3 is around 11 days away.

    Just wait until more info is released. Sheesh.

      Why? The important details have already been announced and they are (frankly) as fantastic as a train wreak.

      We do not need to wait the six months, Microsoft pretty much knocked themselves out of the console race at their own reveal.

        They really didn't.... Remember that small PS3 problem where nobody could use it? Never happened to Xbox. Now PS4 is going to be awesome? Wii is an underpowered gimmick for kids? Outsold everything. Replace all your bits and pieces for an integrated system that knows you and can help you with every day actions just by talking to it? If they pitch it right they will sell them by the bucket load to everyday people. If they then can back that up with the games and some common sense (a stretch I know), they will win (and possibly even make money on a console this time...)

          When was there a problem that meant nobody could use their PS3? There was the PSN outage but that never stopped anybody using their PS3. Ironically, a similar incident WOULD stop people using their XBox One (and possibly PS4 depending what route they go down with regards to DRM).

          Last edited 30/05/13 11:05 am

            I would like to know this as well. I do not recall such an event but I will admit to a faulty memory if a source is provided.

              Sorry, syntax problem. Meant the PSN shut down. I want to like the PS again - I had 1 and 2, then switched to 360. My point was supposed to be that nobody except Nintendo made any money out the last generation, and PS seemed to have more issues that xbox. To make the system sustainable (ie profitable) they need the generalists on board rather than the activists. Maybe consoles are dead, I just don't want them to be.

          Replace all your bits and pieces for an integrated system that knows you and can help you with every day actions just by talking to it?

          So I can create a central point of failure in the form of a DRM encumbered box that treads on my rights as a consumer?

          Furthermore, there is nothing in the device to help you with everyday actions. The XBone is a hyper advanced TiVo and even then it does a poor job.

            A TiVo without the T and V; it has no tuners. What's left?

        Remember the PS3 reveal? Giant enemy crab? Five hundred and ninty nine US dollars? Sony suggested people get a second job to be able to afford the system?

          The reveal I missed but I remember the price.

          I though it could not get any worse that cost arrogance, then came the Microsoft XBone reveal.

          Backfired on them big time when the PS3 finally launched. Most of the midnight releases only had a hand full of people. I remember one here at Myer - when they opened the doors, only two were there waiting.

            My point is people wrote songs about the PS3's demise before it launched and it turned out to be a great console.

              once the games start to come out and Microsoft realise that no-one really wants the other features and focus on making it a games console again then it will start to shift. It'll probably just have a slow start like the PS3 is all

                I hope so, I have little to no interest in TV. The less nonsense between me and the games the better.

                Last edited 30/05/13 11:58 am

        My point is there's only speculation right now. And speculation does not equal fact. Not yet, anyway (who knows - the crazy people might be right).

        Sure, MS are to blame for little info, even contradicting info. But somehow, forum experts have read between the lines and began spouting their theories as fact. When it's just speculation.

        That's why I say, wait until more info is released. Right now it's libertarianism gone crazy.

          My point is there's only speculation right now.

          Look at the past articles. The blocking of used games is a stated fact. It is not speculation.

          Personally, I do not need to hear any more. This fact rules out the console for me. I have my rights as a consumer and I am teaching MS a lesson via my wallet.

          I figure it's more like extrapolation of possiblities to calculate the worst-case-scenarios, and all the worst-case-scenarios (despite being 'worst') are surprisingly fucking horrible, and when people are crying, "WOW. THAT IS SURPRISINGLY FUCKING HORRIBLE," Microsoft aren't replying saying, "Noooo, it won't be surprisingly fucking horrible, it'll be only mildly horrible," they're just saying, "Uh. We'll tell you later... Shitshitshit."

          Responding, 'no comment' to horrific allegations has pretty much NEVER been a reassuring thing.

            But isn't that the beauty of it, the longer Microsoft holds off on telling the public its "Fucking horrible" the more people they will get to pre order the console believing it's not really that fucking horrible.

            Then when they do finally release the horrible news, people who have already made the commitment to buy (pre order) would have a long time ago convinced them selves that they are buying one and most likely wont change there mind.

            I personally hope that the Xbox One sells horribly, so horribly that it forces Microsoft to release a version of the Xbox One without Kinect.

      People are going to judge it on what they tell us. If they only release partial information then that's all people have got to go on and that's what they'll judge it on. If it's actually going to be really awesome and they only released the unpleasant parts of the information then they've got nobody but themselves to blame. The question is why would they do that? They basically took a shit on the floor and are promising to come back 3 weeks later and clean it up.

      They would have been better just waiting for E3 and doing it all at once then at least they might have some positives to balance against all the bullshit.

        That's a good point and I agree that Microsoft has left gaping holes in their message. But people of intelligence and reason will not make up 100% of their opinion based on 50% of the facts. If people wanna condemn the console without all of the details that's their own ignorance. The details yet to come might be really beneficial or equally terrible. But the damage is done though. They should have known the internet is a mindless mob, not a gathering of objectively thinking individuals.

          Dude, what you are missing is while some details are missing the core ones are out and they are inexcusable.

          Like the key one, the blocking of DRM, that is a core fact that is killing the console. It doesn't matter what details emerge later, this fact is enough to put an end to the XBone before it even starts.

          At the end of the day, the fact the console blocks used games and requires binding to a online account renders all other details moot because this mechanism is unwanted.

            Steam has the same features. You can't trade games in, games are locked to a single account. Yet steam is hugely successful.

              It is a successful distribution platform. Some games are sold but are not bound to Steam.

              You can copy them out of the Steam Apps folder and they work.

                So you can trade in games on Steam and buy used games on Steam? Can you lend Steam games to friends?

                  Here's a hint for you: compromised keys.

                  I once bought Just Cause 2 new retail. Key did not work because it had been compromised. Steam insisted I bought it used so I took it back and got a fresh box (turns out I was the forth one that day with a new box).

                  Second time around it worked. But the thought occurred to me. If you found a used copy in mint condition and found someone less lenient on Steam Support, could the compromised key process be used to actually install a used copy?

                  I have not tried it myself. I haven't used Steam in years since the rising popularity of and how 99% of games these days are multi platform so I get the console version instead.

              But that's part of their problem. The advantage consoles have over PC gaming is that they're simple and uncomplicated and convenient. Buy a game, stick it in the console and play. Now they're adding all this extra crap like activation codes and having to validate with the server and some system for trading/lending games that appears to be so ludicrously convoluted that they can't even understand it themselves, let alone explain it.

              Once you strip away the simplicity and convenience of console gaming, we might as well all switch to PC. Yes, we'll have to put up with similar DRM but the games will be cheaper and the hardware better and, unlike now, it won't be any more complicated or less restrictive than consoles.

              What MS (and possibly Sony) are doing here is pissing away their biggest advantage over PC gaming.

              Last edited 30/05/13 12:41 pm

    "We'll share your details later."

      "Microsoft plans to add privacy settings, and is keen to assure consumers of its expertise in this area. Microsoft is claiming you will be informed, that you should have absolutely no worries about privacy issues.... because you will be signing those rights away in the EULA required to use the console."

      Also fixed.

    They're not answering any more questions on the Xbox One till E3. Stop posting click bait articles about it daily. You've got nothing new to report other then rumours and speculation. I guess that's what Kotaku is known for though isn't it?

    Mentioning the Privacy Act doesn't do much to allay my fears, as all they need to do is chuck a paragraph in the licensing agreement, right? I mean, they have to know nobody is going to sit there and go through the entire thing word by word. In the joy of getting a new console, people will just agree to everything to get it set up and BAM!

    “Microsoft wouldn’t be allowed to collect any information without informed prior consent,” he explained. “That would be in breach of the Australian Privacy Act.”

    Like the other guy said, this would prolly come in the form of the 'you need to click accept or you can't use or machine' ..

    So i go through and read something i don't like .. now i am $800 and have a brick that i need to return due to to eula...

    This needs to be set in stone before it goes on sale in australia

    Doesn't every laptop ever also fit the definition of a "surveillance device"?

    Where are the fears that Windows (or more likely some malware) isn't constantly listening to you recite your passwords, and emailing snapshots of you picking your nose to your mother-in-law?

    I think Microsoft does really struggle to understand reaction to their products. They underestimate the wind tunnel of gaming communities howling; that venom can spill over into popular opinion. They tried to use these few weeks to gauge the reaction to Kinect Brother and DRM because their (paid, giddy to be chosen for testing) focus groups reacted overly positively.

    “It is not always watching or always listening".... Ummm isn' this the exact opposite of what they initially said about the xBone's Kinect... I'm sure I recall reading that it would always be on (So the machine can power up from voice comands) I'm wondering if this equates to “It is not always watching or always listening... because you can switch it off at the wall"

    "which has led to some fair (but slightly hysterical) headlines about the Xbox One being a ‘twisted nightmare’ or fitting the description of a ‘surveillance device‘."
    (From Wikipedia) "Surveillance is the monitoring of the behavior, activities, or other changing information, usually of people for the purpose of influencing, managing, directing, or protecting." This works as a decription of the Kinect... it IS a surveillence device. The fact that we usually think of them ad hidden devices (eg "bugs") doesn't mean the CCTV camera at a store isn't a surveillance device. the questions that are important are:
    What (if any) information will be sent to MS?
    What are the safeguards on others accessing any information sent?
    Will there be any identifying information?

    I'm not a conspiracy theorist, but when someone says here's this super advanced webcam that must be plugged into your system for it to work, and the system must be able to talk to home base at least once every 24 hours... well I become concerned with the "why?" of it.

    Has Microsoft stated why they are not just letting you leave the kinect in the box? (or have they just said "I'll explain later")

    This is how the Kinect will be used; spying on you for commercial purposes. (proof below)

    Worrying higlights of the Awards and achievements across tv ecosystem Microsfot patent:


    receiving one or more user-specific reports of all linear video content viewing behaviors of the user
    while using each of a plurality of different applications;

    Descriptions hightlights:

    At 308, method 300 comprises tracking user viewing behaviors of the linear video content. These tracked viewing behaviors can be compiled into one or more reports and sent to the promotional service. Thus, at310, method 300 includes sending to the promotional service one or more reports of linear content viewing behaviors performed by the user while using each of a plurality of different applications. As explained with respect to FIG. 2, the reports are usable by the promotional service to determine if the user-viewing goal is met.

    The user-specific reports of linear content viewing behaviors may be received from any device on which the user watches linear video content. For example, a user may watch linear video content on a television, computer, and mobile phone, and each of these devices may be configured to track the viewing behavior of the user and send a user-specific report to the promotional service (e.g., via a common user identification).

    In some embodiments, each device may compile a report that includes all viewing behaviors of the user across all applications on that device.

    In other embodiments, each device may compile a separate report for the viewing behaviors of the user for each application. In another embodiment, each device may notify the promotional service of every instance of a viewing behavior, and the reports may be compiled at the promotional service.

    In a further embodiment, each application may be configured to track the viewing
    behaviors across all user devices that include that application, and each application may send a report that includes the viewing behavior from all devices of the user.
    The reports may be aggregated by the promotional service and collectively used to determine if the user viewing goal has been met. Thus, at 212, method 200 includes determining if the one or more user-specific reports collectively indicate the user-viewing goal has been reached

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