The infamous European cookie law, which varies from country to country, goes beyond simply placing tracking cookies. "It also deals with scripts, reading device information, etcetera," says Dutch internet lawyer Arnoud Engelfriet to PCM. He points out that there is an exception for information or data which is needed for the technical operation of a machine.
However, Windows 10 and its install files are not necessary for the functioning of a machine. "Is Windows 10 necessary? I don't think so," says Engelfriet.
Automatically, without compliance
Either way, Microsoft downloads multiple gigabytes used for the update to Windows 10. This download happens automatically and silently in the background, which became apparant last week. "This really surprises me," says Engelfriet. The 'silent' aspect of this preload applies to both the download location as well as to the legally required permission. The download (which varies from 3 to 6 GB) are being placed in a hidden folder ($WINDOWS.~BT or $Windows.~WS) on disk C.
Furthermore, users are not being served the required legal permission before downloading the files. Placing the install files on pc's happen through Windows Update, which gives fixes and updates to each version of Windows.
Engelfriet says there is discussion among lawyers and engineers whether updates are merely 'fixes', or contain new functionalities as well. This, in theory, would be the nuance between updates and upgrades. However, Microsoft has been serving new functionality and features to through WIndows Update alongside fixes for bugs and security holes. Windows 10 is a completely new release.
The cookie law also states that placing or reading personal data must happen with explicit consent of the user beforehand. Having that consent in the EULA, as happens in Windows Update, is therefore not permitted, says Engelfriet.
Microsoft Netherlands responds to questions by PCM by saying Windows 10 is a 'Recommended Update'. These kinds of updates are being offered to users through Windows Update, but are unchecked by default.
Microsoft regularly puts out Recommended Updates, for instance to add a new currency symbol of the Russian ruble. These updates nearly always have the generic description 'Install this update to repair problems in Windows.'
After that, the user can find more information about the update by searching for the individual KB-number ('Knowledge Base'). The past few months, there have been issued updates for both Windows 7 and Windows 8.1, that prepared users for the arrival of Windows 10. These are the notification that makes reserving the OS possible, en compatibility enhancements for the upgrade to Windows 10.
'Better upgrade experience'
In an additional response, Microsoft says the automatic preload has been adjusted. Before, it was only applicable to users that explicitely reserved the upgrade, but that was later 'changed to the standard process of Windows Update', a spokesperson tells PCM. This happened in the days after Windows 10 was being rolled out to the public, which happened 29 July.
"Users' machines that already received automatic updates through Windows Update are being prepared for the upgrade to Windows 10, using the necessary files for the future Windows 10 installation. This results in a better upgrade experience as soon as it's available, and makes sure the device will always contain the most recent software."