What a brilliant argument, except that showing proof would require a breach of contract because one would have to reverse-engineer just what the program is doing. In addition to breach of contract, this could be construed as criminal (dvd-decoders for linux come to mind). Symantec would be foolish to toss a hat into this ring, when so many systems are running their software, which phones home constantly. Virus software touches every file on your system and could phone home with great data for marketing purposes or more malicious ends (think of your file contents falling into the hands of the political party you aren't affiliated with). So Symantec can sit quietly, claim no foul if it goes badly for MS and reap the rewards if it does go well for Redmond.
A lot of this falls back onto fair use. If I bought a piece of software based on the agreement on the packaging, I should be able to use that software as it is intended and it should be doing no more than what I intended and agreed to at the time of purchase. Let's pretend this is your mortgage and every 60 days the bank unlocks all their doors, puts all your financial data in folders on the floor, abandons the building, and agrees to take your folder with them to their new location and lock it back up IF you sign a NEW mortgage contract with whatever new terms they decide is appropriate. Here we have the OS upon which so much of our daily life's business is transacted written as swiss-cheese for attackers and in order to have it made whole again, the owner has to sign different terms of ownership.
Finally, a virus is a virus long before Symantec figures out that it exists or what it does, let alone writes a signature for it. A crime is a crime when it occurs, not when it is prosecuted (sorry, Mark). You aren't just arguing that the man isn't dead because a doctor hasn't examined him despite the fact he has no head, you are saying I should rely upon the actions of the decapitated corpse for my own safety.
Lastly, information has always been accessible about every individual. Computers have made that information easier to consolidate and search. This means information that was unreasonable to procure at least used to be hard enough to use to ill-ends that it didn't happen often. Hoover would have Loved to live in today's world. Privacy is inseperable from liberty because one can not safely dissent without privacy. Microsoft has a two-decade history of NOT being able to secure data in their care. It isn't about what people can find out, it is about giving the individual rights over their intellectual property and privacy. What goes back to a software vendor should be no more than that which was agreed to when the first contract was made, the one where consideration changed hands, the only one that should be binding.

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