i don't think that's happening. in its lowest power state, described as wake on voice, the device is listening (which is not the same as recording) for a prompt to power-on [1]. it validates what it picks-up locally on the device. only once it confirms (again, checking locally) a command to fully power-on, are other sensors enabled.
[1] http://www.polygon.com/2013/5/21/4353580/kinect-always-liste...
thinning back a few years, the idea that facebook could amass such volumes of personal data based on one's digital activity sparked much the same reaction. in deciding to use their service, there's a clear tradeoff between enjoying the benefits it provides and giving-up (and trusting them with) a lot of personal data - which, naturally, has potential for abuse.
technologies like this new kinect, as well as personal fitness monitors, google glass, smartwatches and other wearable technology, are just a continuation of that trend, now translated more to the physical realm.
it is definitely a leap, as the data being captured is more tangible and the ability to identify one based on it more real, but its still very much the same and feels like a natural evolution as we move more towards a world where everything is connected..
I keep a piece of tape over my camera, but there is nothing physically blocking the microphone.
It's not really a stretch to think that that capability provided by the XBOX ONE and Kinect 2 could be used for both good and evil. Same for Google Glass - it's always waiting for your "Ok Glass" trigger - but also processing everything else to see if it that keyword is said.
It's important to know where the data is being processed - but the courts have been pretty forgiving to companies that have overstepped their data-collection boundaries --- and even when they've had to pay a penalty, it's never come close to what I'd consider crippling to the point where they'd never make a similar "mistake" again if it were in the best interests of growing their business.
Its so weird to see this anti-kinect sentiment when we're surrounded by always-on internet devices with all sorts of sensors. The paranoid can just kick off the power strip or, heaven forbid, just not buy one.
I'm putting another tally-mark in my "Things Invented Towards a Cyberpunk Hell" column.