So imagine this scenario:
Somebody find a "offline" mod using an alternative server acting as Xbox Live servers. Another one uses that method to take your machine off the Xbox grid but on the new grid. He can install whatever update she/he wants and MS will never know since you aren't on their server anymore.
This will probably affect mostly those who want off the Xbox method to play pirated games and MS may not care about them, but it is still likely. In the end pirated software is how most of the trojan/virus and other malicious code spreads.
Sounds easier to say than to do... if hacking an alternate xboxlive server could be easily done, we'd have seen a few appear during the last 10 years.
Also if a hacked xboxlive is created, they could remove the kinect requirement for games. And if they don't, and you connect to that unofficial network with an active camera, and you get observed by perverts around the world, I think you only have yourself to blame.
Sony doesn't have a patent for it.
They probably have a few ones... anyway they already anounced last February how they will be collecting and analyzing data about your gaming habits, so that your console can download demos before you even know they're available.
Any service provider with individual profiles is collecting and analyzing data for consumer profiling. Facebook, Amazon, your local hypermarket, ... I'm sure even Evilore could provide stats of NeoGaf user locations, when they connect, the correlations between consoles declared (through XBL/PSN/Wii names/friend codes) and the average number of posts... the current society is focused on information, it's everywhere and everybody having access to it is analyzing it.