It is only without express user consent for those who enter into contracts without reading them. Assuming you aren't one of those people then you consented.
What do you mean? Just to see what you were talking about, I downloaded VSCode from their official website, installed and started it. At no point was I (to their credit) presented with a "contract".
OTOH, there was (again, to their credit), a notification when I started the software about how to disable telemetry.