Gathering user consent is what makes the difference between malware and not. If you click "Yes, upload this crash report" or "Yes, upload stats on what buttons I click", that's the program acting according to your wishes. If the program gathers and transmits that data without you asking or reviewing it and against your wishes, that's malware (i.e. malicious software that causes the computer to undermine its owner). Basically, does the computer obey the owner or not?