Criteo is an ad company. You may not have heard of them, but they doretargeting, the type of ads that pursue users across the web, beseeching them to purchase a product they once viewed or have already bought. To identify users across websites, Criteo relies on cross-site tracking using cookies and other methods to follow users as they browse. This has led them to try andcircumvent the privacy features in Apple:undefined:’:undefined:s Safari browser which protects its users from such tracking. Despite this apparently antagonistic attitude towards user privacy, Criteo has also been whitelisted by theAcceptable Ads initiative. This means that their ads are unblocked by popular adblockers such as Adblock and Adblock Plus.Criteo pays Eyeo, the operator of Acceptable Ads, for this whitelisting and must comply with their format requirements. But this also means they can track any user of these adblockers who has notdisabled Acceptable Ads, even if they have installedprivacy tools such as EasyPrivacy with the intention of protecting themselves. EFF is concerned about Criteo:undefined:’:undefined:s continued anti-privacy actions and their continued inclusion in Acceptable Ads.Safari Shuts out Third Party Cookies:undefined:…:undefined:
All popular browsers give users control over who gets to set cookies, but Safari is the only one that blocks third-party cookies (those set by a domain other than the site you are visiting) by default. (Safari:undefined:’:undefined:s choice is important because only5-10% of users ever change default settings in software.) Criteo relies on third-party cookies. Since users have little reason to visit Criteo:undefined:’:undefined:s own website, the company gets its cookies onto users:undefined:’:undefined: machines through its integration on many online retail websites. Safari:undefined:’:undefined:s cookie blocking is a major problem for Criteo, especially given the large and lucrative nature of iPhone:undefined:’:undefined:s user base. Rather than accept this, Criteo has repeatedly implemented ways to defeat Safari:undefined:’:undefined:s privacy protections.
One workaroundresearchers detected Criteo using was to redirect users from sites where their service was present to their own. For example, if you visitedwintercoats.com and clicked on a product category, you would be first diverted tocriteo.com and then redirected towintercoats.com/down-filled. Although imperceptible to the user, this detour was enough to persuade the browser thatcriteo.com is a site you chose to visit, and therefore a first party entitled to set a cookie rather than a third party. Criteo applied for apatent on this method in August 2013.:undefined:…:undefined:And Closes the Backdoor
Last summer, however, Apple unveiled a new version of Safari with more sophisticated cookie handling:undefined:—:undefined:called Intelligent Tracking Prevention (ITP):undefined:—:undefined:whichkilled off the redirect technique as a means to circumvent the cookie controls. The browser now analyzes if the user has engaged with a website in a meaningful way before allowing it to set a cookie. The announcement triggered panic among advertising companies, whose trade association, the Interactive Advertising Bureau,denounced the feature and rushed outtechnical recommendations to work around it. Obviously the level of user :undefined:“:undefined:interaction:undefined:”:undefined: with Criteo during the redirect described above fails ITP:undefined:’:undefined:s test, which meant Criteo was locked out again.
It appears that Criteo:undefined:’:undefined:s response was to abandon cookies for Safari users and to generate a persistent identifier by piggybacking on a key user safety technology calledHSTS. When a browser connects to a site via HTTPS (i.e. a site that supports encryption), the site can respond with an HTTP Strict Transport Security policy (HSTS), instructing the browser to only contact it using HTTPS. Without a HSTS policy, your browser might try to connect to the site over regular old unencrypted HTTP in the future:undefined:—:undefined:and thus be vulnerable to a downgrade attack. Criteo used HSTS to sneak data into the browser cache to produce an identifier it could use torecognize the individual:undefined:’:undefined:s browser and profile them. This approach relied on the fact that it is difficult to clear HSTS data in Safari, requiring the user to purge the cache entirely to delete the identifier. For EFF, it is especially worrisome that Criteo used a technique that pits privacy protection against user security interests by targeting HSTS. Use of this mechanism wasdocumented by Gotham City Research, an investment firm who have bet against Criteo:undefined:’:undefined:s stock.
In early December, Apple released an update to iOS and Safari which disabled Criteo:undefined:’:undefined:s ability to exploit HSTS. This led to Criteo revising down their revenue forecasts and asharp fall in their share price.How is Criteo :undefined:“:undefined:Acceptable Advertising:undefined:”:undefined:****?
":undefined:…:undefined: w__e sort of seek the consent of users, just like we had done before_."__1_ - Erich Eichmann, CEO Criteo
_"Only users who don:undefined:’:undefined:t already have a Criteo identifier will see the header or footer, and it is displayed only once per device. Thanks to [the?] Criteo advertisers network, most of your users would have already accepted our services on the website of another of our partner. On average, only 5% of your users will see the headers or footers, and for those who do, the typical opt-out rate is less than .2%._" -Criteo Support Center
Criteo styles itself as a leader in privacy practices, yet they have dedicated significant engineering resources to circumventing privacy tools. They claim to have obtained user consent to tracking based on a minimal warning delivered in what we believe to be a highly confusing context. When a user first visits a site containing Criteo:undefined:’:undefined:s script, they received a small notice stating, _"_Click any link to use Criteo:undefined:’:undefined:s cross-site tracking technology." If the user continues to use the site, they are deemed to have consented. Little wonder that Criteo can boast of a low opt-out rate to their clients.
Due to their observed behaviour prior to the ITP episode, Criteo:undefined:’:undefined:s incorporation into the Acceptable Ads in December 2015 arousedcriticism among users of ad blockers. We have writtenelsewhere about how Acceptable Ads creates a clash of interests between adblocking companies and their users, especially those concerned with their privacy. But Criteo:undefined:’:undefined:s participation in Acceptable Ads brings into focus the substantive problem with the program itself. Thecriteria for Acceptable Ads are concerned chiefly with format and aesthetic aspects (e.g. How big is the ad? How visually intrusive? Does it blink?) and excludes privacy concerns. Retargeting is unpopular andmocked by users, in part because it wears its creepy tracking practices on its sleeve. Our view is that Criteo:undefined:’:undefined:s bad behavior should exclude its products from being deemed :undefined:“:undefined:acceptable:undefined:”:undefined: in any way.
The fact that the Acceptable Ads Initiative has approved Criteo:undefined:’:undefined:s user-tracking-by-misusing-security-features ads is indicative of the privacy problems we believe to be at the heart of the Acceptable Ads program. In March this year, Eyeo announced anAcceptable Ads Committee that will control the criteria for Acceptable Ads in the future. The Committee should start by instituting a rule which excludes companies that circumvent explicit privacy tools or exploit user security technologies for the purpose of tracking.1. http://criteo.investorroom.com/download/Transcript_Q3+2017+Earnings_EDITED.pdf
Have you ever sent a motivational text to a friend? If you have, perhaps you tailored your message to an activity or location by saying :undefined:“:undefined:Good luck in the race!:undefined:”:undefined: or :undefined:“:undefined:Have fun in New York!:undefined:”:undefined: Now, imagine doing this automatically with acompuuuter. What a great invention. Actually, no. That:undefined:’:undefined:s not a good invention, it:undefined:’:undefined:s our latest Stupid Patent of the Month.
U.S. Patent No. 9,069,648 is titled :undefined:“:undefined:Systems and methods for delivering activity based suggestive (ABS) messages.:undefined:”:undefined: The patent describes sending :undefined:“:undefined:motivational messages,:undefined:”:undefined: based :undefined:“:undefined:on the current or anticipated activity of the user,:undefined:”:undefined: to a :undefined:“:undefined:personal electronic device.:undefined:”:undefined: The patent provides examples such as sending the message :undefined:“:undefined:don:undefined:’:undefined:t give up:undefined:”:undefined: when the user is running up a hill. The examples aren:undefined:’:undefined:t limited to health or exercise. For example, the patent suggests sending messages like :undefined:“:undefined:do not fear:undefined:”:undefined: and :undefined:“:undefined:God is with you:undefined:”:undefined: when a :undefined:“:undefined:user enters a dangerous neighborhood.:undefined:”:undefined:
The patent:undefined:’:undefined:s description of its invention is filled with silly, non-standard acronyms like ABS for :undefined:“:undefined:activity based suggestive:undefined:”:undefined: messages or EBIF for :undefined:“:undefined:electronic based intelligence function.:undefined:”:undefined: These silly acronyms create an illusion of complexity where plain, descriptive language would reveal the mundane nature of the supposed invention. For example, what the patent grandly calls EBIF appears to be nothing more than standard computer processing.
The :undefined:’:undefined:648 patent is owned by Motivational Health Messaging LLC. While this may be a new company, at least one ofthe people behind it has been involved inmassive patent trolling campaigns before. And the two named inventors have both been inventors on patents that trolls have asserted hundreds of times. One is also an inventor listed on patents asserted byinfamous patent troll Shipping and Transit LLC. The other named inventor is the inventor on the patents asserted byElectronic Communication Technologies LLC. Those two entities (with their predecessors) brought over 700 lawsuits, many against very small businesses. In other words, the :undefined:’:undefined:648 patent has been issued to Troll Co. at 1 Troll Street, Troll Town, Trollida USA.
We believe that the claims of the :undefined:’:undefined:648 patent are clearly invalid under the Supreme Court:undefined:’:undefined:s decision inAlice v. CLS Bank, which held abstract ideas do not become eligible for a patent merely because they are implemented in conventional computer technology. Indeed, the patent repeatedly emphasizes that the claimed methods are not tied to any particular hardware or software. For example, it states:
The software and software logic described in this document :undefined:…:undefined: which comprises an ordered listing of executable instructions for implementing logical functions, can be embodied in any non-transitory computer-readable medium for use by or in connection with an instruction execution system, apparatus, or device, such as a computer-based system, processor-containing system, or other system that can fetch the instructions from the instruction execution system, apparatus, or device and execute the instructions.
The :undefined:’:undefined:648 patent issued on June 30, 2015, a full yearafter the Supreme Court:undefined:’:undefined:sAlice ruling. Despite this, the patent examinernever even discussed the decision. IfAlice is to mean anything at all, it has to be applied to an application like this one.
In our view, if Motivational Health Messaging asserts its patent in court, any defendant that fought back should prevail underAlice. Indeed, we would hope that the court would strongly consider awarding attorney:undefined:’:undefined:s fees to the defendant in such a case. Shipping & Transit has now hadtwo fee awards made against it for asserting patents that are clearly invalid underAlice. And the Federal Circuitrecently held that fee awards can be appropriate when patent owners make objectively unreasonable argument concerningAlice.
In addition to the problems underAlice, we believe the claims of the :undefined:’:undefined:648 patent should have been rejected as obvious. When the application was filed in 2012, there was nothing new aboutsending motivational messages orautomatically tailoring messages to things like location. In one proposed embodiment, the patent suggests that a :undefined:“:undefined:user walking to a hole may be delivered ABS messages, including reminders or instructions on how to play a particular hole.:undefined:”:undefined: But golf apps werealready doing this. The Patent Office didn:undefined:’:undefined:t consider any real-world mobile phone applications when reviewing the application.
If you want to look for prior art yourself,Unified Patents is running a crowdsourcingcontest to find the best prior art to invalidate the :undefined:’:undefined:648 patent. Aside from the warm feelings that come from fighting patent trolls, there is a $2000 prize pool.
Despite the weakness of its patent, Motivational Health Messaging LLC might still send out demand letters. If you receive such a letter, you cancontact EFF and we can help you find counsel.
We havelong complained that the Patent Office promotes patent trolling by granting obvious and/or abstract software patents. Thehistory of the :undefined:’:undefined:648 patent shows how the Patent Office:undefined:’:undefined:s failure to properly review applications leads to bad patents falling into the hands of trolls.