Better watch out if you are playing Xbox, get ticked, and cuss. Microsoft might ban you for the “offensive language.” If they do, then say bye-bye to your Xbox Gold Membership and any Microsoft account balances.
Or if you and a significant other are getting hot and heavy via Skype, you better watch your language and any nudity because that, too, can get you banned. The ban hammer could also fall if Cortana is listening at the wrong moment or if documents and files hosted on Microsoft services violate Microsoft’s amended terms.
Civil rights activist and law student Jonathan Corbett took the time to read the new terms and sounded the alarm.
Microsoft provided a summary of the changes; number 5 reads:
In the Code of Conduct section, we’ve clarified that use of offensive language and fraudulent activity is prohibited. We’ve also clarified that violation of the Code of Conduct through Xbox Services may result in suspensions or bans from participation in Xbox Services, including forfeiture of content licenses, Xbox Gold Membership time, and Microsoft account balances associated with the account.
What qualifies as offensive language?
Offensive language is fairly vague. Offensive to whom? What my granny might find offensive and what I might find offensive could be vastly different. But how would Microsoft even know if you had truly been “offensive”? Well, that part falls under Code of Conduct Enforcement, which states, “When investigating alleged violations of these Terms, Microsoft reserves the right to review Your Content in order to resolve the issue.”
Microsoft did add, “However, we cannot monitor the entire Services and make no attempt to do so.”
I’m not sure that will make you feel better, as another portion states that Microsoft “may also block delivery of a communication (like email, file sharing or instant message) to or from the Services in an effort to enforce these Terms or we may remove or refuse to publish Your Content for any reason.”
Corbett also pointed out a portion of text found in Microsoft’s new agreement:
Don’t publicly display or use the Services to share inappropriate content or material (involving, for example, nudity, bestiality, pornography, offensive language, graphic violence, or criminal activity).
Corbett then wrote:
So wait a sec: I can’t use Skype to have an adult video call with my girlfriend? I can’t use OneDrive to back up a document that says “f*ck” in it? If I call someone a mean name in Xbox Live, not only will they cancel my account, but also confiscate any funds I’ve deposited in my account? (And are we no longer allowed to shoot people in Call of Duty? Animated violence doesn’t really get any more “graphic” than this Microsoft-approved video game offers.)
Are Microsoft’s ToS changes due to FOSTA/SESTA?
Some folks believe the changes in Microsoft’s terms may be related to Congress passing the Fight Online Sex Trafficking Act (FOSTA), which was combined with the Stop Enabling Sex-Trafficking Act (SESTA). FOSTA/SESTA would hold platforms responsible for users’ speech, illegally shared content, and anything that might be construed as trafficking. It has been called “the death of the open internet.”
The Department of Justice warned that the bill “raises a serious constitutional concern,” as it “shall apply regardless of whether the conduct alleged occurred [sic], or is alleged to have occurred, before, on, or after such date of enactment.” In short, since it applies retroactively, it applies to trafficking that took place before the law passed — which the DoJ believes violates the Constitution’s Ex Post Facto Clause.
When the Senate passed the bill, the Electronic Frontier Foundation (EFF) called it a “dark day for the Internet” because it is “a bill that silences online speech by forcing Internet platforms to censor their users.” FOSTA/SESTA is “the worst of both worlds.” The EFF added, “When the Department of Justice is the group urging Congress not to expand criminal law and Congress does it anyway, something is very wrong.”
Already, Craigslist shuttered its “personals” section, and Reddit banned numerous subreddits. Craigslist explained, “Any tool or service can be misused. We can’t take such risk without jeopardizing all our other services, so we are regretfully taking Craigslist personals offline. Hopefully we can bring them back some day.”
When FOSTA/SESTA passed the House, Sen. Ron Wyden (D-Ore.) — a critic of the bill — warned, “This bill will only prop up the entrenched players who are rapidly losing the public’s trust. The failure to understand the technological side effects of this bill — specifically that it will become harder to expose sex-traffickers, while hamstringing innovation — will be something that this congress will regret.”
Mike Ybarra, Microsoft Corporate Vice President for Gaming, said the "offensive language" Code of Conduct policy is nothing new for Xbox.
There is no policy change for Xbox Live. https://t.co/NbpxkGXDUX— Mike Ybarra (@XboxQwik) March 27, 2018