French authorities serve notice to Microsoft for Windows 10 privacy failings

Strict online privacy laws in the EU continue to bedevil American tech companies. The latest to catch flak is Microsoft, over a handful of objections from a French data protection agency.

[Updated 20-Jul 15:45 PDT with comment from Microsoft]

The French National Data Protection Commission (CNIL) issued a formal notice against Microsoft on Wednesday, ordering that the company "stop collecting excessive data and tracking browsing by users without their consent."

The complaint also demands that "Microsoft take satisfactory measures to ensure the security and confidentiality of user data."

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CNIL based its complaint on seven investigations it conducted between April and June of this year, as well as interviews with Microsoft representatives to ensure that the company was following the French Data Protection Act.

The CNIL notice accuses Microsoft of the following violations:

  • Irrelevant or excessive data collected - The CNIL found that "collecting diagnostic and usage data via its telemetry service" was acceptable, but it also found that the default Windows 10 settings, which collect additional information, go too far. The complaint says collecting "information ... on all the apps downloaded and installed on the system by a user and the time spent on each one" is "excessive."
  • A lack of security - This complaint says the option to secure a PC with a four-digit PIN is insecure because it does not limit the number of attempts to enter the PIN.
  • Lack of individual consent - According to this allegation, Microsoft's advertising ID enables Windows apps and other parties' apps to monitor browsing and offer targeted ads without proper consent.
  • Cookies - The agency complains that Microsoft "puts advertising cookies on users' terminals" without sufficient notice or consent.
  • Data transfer outside the EU - CNIL says data from French Windows users is being transferred to the US on a "safe harbor" basis, a practice that should have stopped after a decision issued by the Court of Justice of the European Union on October 6, 2015.

This isn't the first big American tech company to land in CNIL's crosshairs. Facebook faced a similar complaint in February of this year, and Google received its own complaint in 2013, with another "compliance package" proposed in 2014.

The CNIL public notice stresses "formal notices are not sanctions and no further action will be taken if the company complies with the Act within the specified timescale, in which case the notice proceedings will be closed and this decision will also be made public."

The complaint gives Microsoft three months to comply.

David Heiner, vice president and deputy general counsel, Microsoft, sent this response via email:

Earlier today Microsoft received a notice from the French data protection authority, the Commission Nationale de l'Informatique et des Libertés or CNIL, raising concerns about certain aspects of Windows 10. The notice gives Microsoft three months to address the issues.

We built strong privacy protections into Windows 10, and we welcome feedback as we continually work to enhance those protections. We will work closely with the CNIL over the next few months to understand the agency's concerns fully and to work toward solutions that it will find acceptable.

The CNIL noted that the Safe Harbor framework is no longer valid for transferring data from European Union to the United States. We fully understand the importance of establishing a sound legal framework for trans-Atlantic data transfers, and that is why Microsoft has been very supportive of the efforts on both side of the Atlantic that led to last week's adoption of the Privacy Shield.

As the European Commission observed, Microsoft's January 2016 Privacy Statement states that the company adheres to the principles of the Safe Harbor Framework. Microsoft has in fact continued to live up to all of its commitments under the Safe Harbor Framework, even as the European and U.S. representatives worked toward the new Privacy Shield. As we state in our privacy statement, in addition to the Safe Harbor Framework we rely on a variety of legal mechanisms as the basis for transferring data from Europe, including standard contractual clauses, a data transfer mechanism established by the European Commission and approved by European data protection authorities, to cover data flows from the European Union to the United States. "Microsoft will release an updated privacy statement next month, and that will say Microsoft intends to adopt the Privacy Shield. We are working now toward meeting the requirements of the Privacy Shield.

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