An update to the Microsoft Service Agreement—which applies to services like Skype, Xbox Live, OneDrive, and more—includes a prohibition "offensive language on [Microsoft] services." Spotted by Jonathan Corbett at Professional Troublemaker, the modified rules also outline Microsoft's right to review your content as part of an investigation and potentially forfeit credits and subscription time attached to an affected account, including Xbox Live Gold membership time.

A summary of the update, posted on March 1st and going into effect on May 1st, describes the changes as follows:

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.

The relevant section of the full Code of Conduct reads:

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).

Enforcement. If you violate these Terms, we may stop providing Services to you or we may close your Microsoft account. We 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. When investigating alleged violations of these Terms, Microsoft reserves the right to review Your Content in order to resolve the issue. However, we cannot monitor the entire Services and make no attempt to do so.

In Microsoft's current Service Agreement, the language is mostly identical, but without the inclusion of the term "offensive language."

The existence of such a clause is not particularly unusual or troubling in and of itself. Every service from Facebook's Whatsapp to Twitter have some sort of terms of use that prohibit the use of the service for illegal activity at minimum, often with provisions related to harassment and abuse. For services that allow public posting, policies on adult content and violence or gore naturally follow.

What makes Microsoft's particular implementation concerning is its vagueness and indifference to consent. Illegal content is, obviously, illegal and techniques like image-hashing provide a non-obtrusive way of scanning for it. Harassment and abuse, meanwhile, are defined by the lack of consent that makes them objectionable. "Offensive content," however, is defined neither by the law nor the objection of a party involved which means it could quite easily apply to private, legal conversations and exchange between consenting adults. Is it about to be against the rules to merely swear on Skype?

Microsoft asserts it has no interest in monitoring all its services, which is the only way such consensual but "offensive" content could feasibly be flagged, given neither party has an incentive to alert Microsoft to its existence. Nevertheless it's a troubling, uncomfortable addition. We've reached out to Microsoft for more information on the definition of "offensive content."

Perhaps not coincidentally, the change coincides with the passage of SESTA/FOSTA, a controversial bill opposed by sex workers and speech advocates alike, which makes it easier for individuals to sue websites for allegedly facilitating sex trafficking. The legislation has inspired a wave of protective self-censorship including the total shutdown of Craigslist's Personals page and the banning of a number of subreddits. All this comes alongside reports that Google Drive, meanwhile, has suddenly gotten stricter about enforcing its own anti-pornography terms.

Online harassment is a serious and prevalent issue, sex trafficking is illegal and abusive. A blithe and blanket ban on "offensive language," indifferent to context may be effective at shielding Microsoft from litigation at the expense of its users, but it seems quite unlikely to help solve either problem.

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