A Lump of Coal in the Internet’s Stocking: FCC Poised to Gut Net Neutrality Rules

  • In a new proposal issued last week, the Federal Communications Commission (FCC) set out a plan to eliminate net neutrality protections, ignoring the voices of millions of Internet users who weighed in to support those protections. The new rule would reclassify high-speed broadband as an “information service” rather than a “telecommunications service” (remember, the FCC is forbidden from imposing neutrality obligations on information services). It would then eliminate the bright-line rules against blocking, throttling, and pay-to-play (as well as the more nebulous general conduct standard) in favor of a simplistic transparency requirement. In other words, your ISP would be free to set itself up as an Internet gatekeeper, as long as it is honest about it.

    This is a bad idea for many, many reasons. Here are a few.

    Net Neutrality Has Been a Pillar of the Open Internet

    The FCC’s decision to gut net neutrality protections isn’t just partisan business as usual; it’s a withdrawal from over a decade of work to protect Internet users from unfair practices by Internet service providers. While the FCC’s approach has changed over the years, its goal of promoting net neutrality did not. Two years ago, it finally adopted legally enforceable rules, most prominently bright-line prohibiting ISPs from blocking, throttling, and creating Internet “fast lanes” that would favor some sites and content over others. But, as the saying goes, “elections have consequences.” One consequence of the 2016 election is that the FCC has new leadership that feels free not just to change the rules, but to get rid of them altogether.

    Ushering in a Pay-To-Play Internet

    Because the draft order repeals net neutrality rules altogether, it allows ISPs to block or throttle lawful content, or give the highest-paying websites and apps a better ability to reach customers’ devices, or to favor Internet traffic from the ISPs’ own subsidiaries and business partners, all without any legal repercussions. It paves the way for an Internet that works more like cable television, where wealthy insiders decide which speakers can reach a broad audience. A pay-to-play Internet means that smaller sites and apps, or startups without major funding, will be forced to negotiate with multiple ISPs to avoid their content being buried, degraded, or even blocked.

    The FCC’s decision to gut net neutrality protections isn’t just partisan business as usual; it’s a withdrawal from over a decade of work to protect Internet users from unfair practices.

    The draft order claims that “latency-sensitive” applications will benefit from paying to connect to you faster and more reliably, while other apps and sites will continue to work as they do today. But without rules, nothing will require ISPs to give the same quality of service even to apps that pay the same amount, let alone those that can’t afford it. Content from an ISP’s business affiliates or favored partners will be able to get a fast lane no matter how much another website or app is willing to pay. The order justifies its conclusions by cherry-picking some economic analyses that support them, while ignoring the harms to free speech that flow from paid prioritization.

    Weirdly, the proposal acknowledges the fears of “non-profits and independent and diverse content producers” who spoke up this year to say that pay-to-play Internet access is harmful. But it dismisses these concerns, saying that these speakers “may be less likely to need [quality-of-service] guarantees.” Not surprisingly, it doesn’t explain why non-profits and independent content producers don’t need the same access to Internet subscribers as major media companies do.

    FCC or FTC?

    The FCC’s proposal attempts to paper over its abdication of regulatory responsibility by insisting, mistakenly, that the Federal Trade Commission can adequately protect Internet subscribers. The idea is that ISPs have to be forthcoming about their practices, and if those practices harm consumers or competition, the FTC (and/or private antitrust lawyers) can hold them accountable.

    The most basic problem with this theory is that it doesn’t actually forbid unfair data discrimination practices. If a company is forthright about its intent to sell your private data, block competitors’ content, or throttle competing apps, then the FTC will do nothing. And unlike clear net neutrality rules provided under Title II telling ISPs and the public what is and is not forbidden, the FTC only acts on a case-by-case basis after harm has occurred. The agency has no power to issue rules that prevent that harm in the first place. Finally, ISPs have been working hard to defang the FTC in court, with some success. Recently, AT&T won a case in federal appeals court establishing that it was immune to FTC oversight because it operated a telephone service. Though the decision has been vacated pending further proceedings, ISPs now stand a good chance of getting both the FCC and the FTC out of the picture, leaving customers without an advocate in the federal government.

    What is worse, even the transparency rules have been pared back, on the assumption that customers don’t really need detailed information about network performance. But those metrics are crucial to identifying non-neutral practices. And the draft order suggests that the FCC won’t even enforce the transparency rules in any meaningful way. Without the ability to double-check how ISPs are behaving, we’ll be left taking their word for it. That obviously would make it very difficult to persuade the FTC that the companies are saying one thing while doing another.

    The Antitrust Head Fake

    Net neutrality is sometimes thought of as a competition problem: if users could vote with their wallets and switch providers, ISPs would be more likely to respect their preferences. Following this line of thinking, the new proposal insists that antitrust lawyers (at the FTC and in private practice) can police anticompetitive behavior.

    Unfortunately, this won’t work. Antitrust enforcement is in such dire shape when dealing with regulated industries like ISPs that the FTC itself warned Congress about it years ago. Thanks to two Supreme Court decisions (one of which involved Verizon), the courts are likely to deny access to antitrust remedies so long as the industry is regulated by a sector-specific statute and agency. The intent behind the rulings was to ensure that expert agencies administrating sector-specific laws handle disputes rather than generalized knowledge courts. In this instance, the expert agency and statute are the FCC and the Communications Act. Notably, the new proposal ignores these Supreme Court decisions.

    Curiously, the new proposal ignores the current competition problem. It insists that the ISP market is competitive, even though a majority of Americans have only one choice of ISPs for high-speed broadband access of 100 mbps and up. That lack of choice isn’t a problem, the proposal suggests, because monopolies that face competition in some areas will act like they face competition everywhere. Even the evidence that shows that people rarely switch providers is treated as a sign of customer loyalty to the regional monopoly. Those times when Comcast refuses to cancel your cable subscription? Proof that the cable company is aggressively competing for your dollars.

    At the core of the FCC’s contorted vision of the competitive landscape is the effort to lower our expectations by examining only the broadband market of 25 mbps downstream and 3 mbps upstream, which are relatively slow speeds today. Even at that level, the FCC found the market to be “moderately concentrated,” which, under the Department of Justice’s own guidelines, can be a source of “significant competitive concerns and often warrant scrutiny.” In fact, the FCC’s view of the competitive landscape directly contradicts the DOJ’s finding that large ISPs have the power and intent to stifle online competition—a stance the DOJ took just last week in its lawsuit to block AT&T’s merger with Time Warner.

    Tech Giants Aren’t Going to Protect the Open Internet Either

    The new proposal’s final justification for abandoning neutrality rules is that tech companies will police ISPs for us. In other words, ISPs won’t engage in unfair discrimination because Google, Facebook, Amazon, Netflix, and others will exert their own pressure against it.

    This argument misunderstands a fundamental purpose of network neutrality: ensuring that the Internet remains an open field so that the titans of today can be disrupted by the startups of tomorrow. Google and Facebook aren’t going to do that for us; it is not their job to protect the interests of users, much less future competitors. That is why literally thousands of small businesses (including small ISPs, which the FCC completely ignored) have asked the FCC not to abandon its responsibility to navigate the public interest in the Internet. They have no reason to believe the biggest corporations will act on behalf of everyone else.

    Their skepticism is justified. Think back to when Google and Verizon tried to sell the public on a deal that allowed them to favor their own products. Or when Facebook endorsed AT&T’s antitrust-violating merger with T-Mobile that would have raised prices on everyday wireless consumers. Or Netflix’s CEO Reed Hastings’ suggestion (later withdrawn) that the company would be walking back their fight for network neutrality. Each of these were major decision points for Internet policy and all of them were crafted to serve their shareholder interests (which is expected since that is the first responsibility of a corporation).

    There are many more flaws in the FCC’s proposal, which we will discuss in future posts (for example, the FCC’s continuing confusion about how the Internet works). But the key takeaway is this: the FCC is repealing, not replacing, principles and rules that have been crucial to the growth of the Open Internet.

    That means the fight for net neutrality moves into a new phase – and we’ll need your help.

    The best way to help right now is to contact Congress. But don’t stop there – we’ll need some offline noise to protect online speech. Activists are planning protests around the country and in DC – if there’s one in your area, come out and make your voice heard.

    And if the FCC nonetheless continues to ignore public outcry and the public interest, we’ll have a new front: the courts. The proposed rules have any number of legal flaws, and we will be happy to point them out to a judge. The FCC may be abandoning its role in protecting the Internet, but we won’t.

    Take action

    Tell Congress: Don’t sell the Internet out


Tmux Commands

screen and tmux

A comparison of the features (or more-so just a table of notes for accessing some of those features) for GNU screen and BSD-licensed tmux.

The formatting here is simple enough to understand (I would hope). ^ means ctrl+, so ^x is ctrl+x. M- means meta (generally left-alt or escape)+, so M-x is left-alt+x

It should be noted that this is no where near a full feature-set of either group. This - being a cheat-sheet - is just to point out the most very basic features to get you on the road.

Trust the developers and manpage writers more than me. This document is originally from 2009 when tmux was still new - since then both of these programs have had many updates and features added (not all of which have been dutifully noted here).

Action tmux screen
start a new session tmux OR
tmux new OR
tmux new-session
re-attach a detached session tmux attach OR
tmux attach-session
re-attach an attached session (detaching it from elsewhere) tmux attach -d OR
tmux attach-session -d
screen -dr
re-attach an attached session (keeping it attached elsewhere) tmux attach OR
tmux attach-session
screen -x
detach from currently attached session ^b d OR
^b :detach
^a ^d OR
^a :detach
rename-window to newname ^b , <newname> OR
^b :rename-window <newn>
^a A <newname>
list windows ^b w ^a w
list windows in chooseable menu ^a "
go to window # ^b # ^a #
go to last-active window ^b l ^a ^a
go to next window ^b n ^a n
go to previous window ^b p ^a p
see keybindings ^b ? ^a ?
list sessions ^b s OR
tmux ls OR
tmux list-sessions
screen -ls
toggle visual bell ^a ^g
create another window ^b c ^a c
exit current shell/window ^d ^d
split window/pane horizontally ^b " ^a S
split window/pane vertically ^b % ^a |
switch to other pane ^b o ^a <tab>
kill the current pane ^b x OR (logout/^D)
collapse the current pane/split (but leave processes running) ^a X
cycle location of panes ^b ^o
swap current pane with previous ^b {
swap current pane with next ^b }
show time ^b t
show numeric values of panes ^b q
toggle zoom-state of current pane (maximize/return current pane) ^b z
break the current pane out of its window (to form new window) ^b !
re-arrange current panels within same window (different layouts) ^b [space]
Kill the current window (and all panes within) ^b killw [target-window]
  • Criteo is an ad company. You may not have heard of them, but they do retargeting, 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 and circumvent the privacy features in Apple’s Safari browser which protects its users from such tracking. Despite this apparently antagonistic attitude towards user privacy, Criteo has also been whitelisted by the Acceptable 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 not disabled Acceptable Ads, even if they have installed privacy tools such as EasyPrivacy with the intention of protecting themselves. EFF is concerned about Criteo’s continued anti-privacy actions and their continued inclusion in Acceptable Ads.

    Safari Shuts out Third Party Cookies…

    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’s choice is important because only 5-10% of users ever change default settings in software.) Criteo relies on third-party cookies. Since users have little reason to visit Criteo’s own website, the company gets its cookies onto users’ machines through its integration on many online retail websites. Safari’s cookie blocking is a major problem for Criteo, especially given the large and lucrative nature of iPhone’s user base. Rather than accept this, Criteo has repeatedly implemented ways to defeat Safari’s privacy protections.

    One workaround researchers detected Criteo using was to redirect users from sites where their service was present to their own. For example, if you visited wintercoats.com and clicked on a product category, you would be first diverted to criteo.com and then redirected to wintercoats.com/down-filled. Although imperceptible to the user, this detour was enough to persuade the browser that criteo.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 a patent on this method in August 2013.

    …And Closes the Backdoor

    Last summer, however, Apple unveiled a new version of Safari with more sophisticated cookie handling—called Intelligent Tracking Prevention (ITP)—which killed 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 out technical recommendations to work around it. Obviously the level of user “interaction” with Criteo during the redirect described above fails ITP’s test, which meant Criteo was locked out again.

    It appears that Criteo’s response was to abandon cookies for Safari users and to generate a persistent identifier by piggybacking on a key user safety technology called HSTS. 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—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 to recognize the individual’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 was documented by Gotham City Research, an investment firm who have bet against Criteo’s stock.

    In early December, Apple released an update to iOS and Safari which disabled Criteo’s ability to exploit HSTS. This led to Criteo revising down their revenue forecasts and a sharp fall in their share price.

    How is Criteo Acceptable Advertising”****?

    "… w__e sort of seek the consent of users, just like we had done before_."__1_ - Erich Eichmann, CEO Criteo

    _"Only users who don’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’s script, they received a small notice stating, _"_Click any link to use Criteo’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’s incorporation into the Acceptable Ads in December 2015 aroused criticism among users of ad blockers. We have written elsewhere about how Acceptable Ads creates a clash of interests between adblocking companies and their users, especially those concerned with their privacy. But Criteo’s participation in Acceptable Ads brings into focus the substantive problem with the program itself. The criteria 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 and mocked by users, in part because it wears its creepy tracking practices on its sleeve. Our view is that Criteo’s bad behavior should exclude its products from being deemed “acceptable” in any way.

    The fact that the Acceptable Ads Initiative has approved Criteo’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 an Acceptable 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


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  • 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 “Good luck in the race!” or “Have fun in New York!” Now, imagine doing this automatically with a compuuuter. What a great invention. Actually, no. That’s not a good invention, it’s our latest Stupid Patent of the Month.

    U.S. Patent No. 9,069,648 is titled “Systems and methods for delivering activity based suggestive (ABS) messages.” The patent describes sending “motivational messages,” based “on the current or anticipated activity of the user,” to a “personal electronic device.” The patent provides examples such as sending the message “don’t give up” when the user is running up a hill. The examples aren’t limited to health or exercise. For example, the patent suggests sending messages like “do not fear” and “God is with you” when a “user enters a dangerous neighborhood.”

    The patent’s description of its invention is filled with silly, non-standard acronyms like ABS for “activity based suggestive” messages or EBIF for “electronic based intelligence function.” 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 ’648 patent is owned by Motivational Health Messaging LLC. While this may be a new company, at least one of the people behind it has been involved in massive 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 by infamous patent troll Shipping and Transit LLC. The other named inventor is the inventor on the patents asserted by Electronic Communication Technologies LLC. Those two entities (with their predecessors) brought over 700 lawsuits, many against very small businesses. In other words, the ’648 patent has been issued to Troll Co. at 1 Troll Street, Troll Town, Trollida USA.

    We believe that the claims of the ’648 patent are clearly invalid under the Supreme Court’s decision in Alice 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 … 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 ’648 patent issued on June 30, 2015, a full year after the Supreme Court’s Alice ruling. Despite this, the patent examiner never even discussed the decision. If Alice 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 under Alice. Indeed, we would hope that the court would strongly consider awarding attorney’s fees to the defendant in such a case. Shipping & Transit has now had two fee awards made against it for asserting patents that are clearly invalid under Alice. And the Federal Circuit recently held that fee awards can be appropriate when patent owners make objectively unreasonable argument concerning Alice.

    In addition to the problems under Alice, we believe the claims of the ’648 patent should have been rejected as obvious. When the application was filed in 2012, there was nothing new about sending motivational messages or automatically tailoring messages to things like location. In one proposed embodiment, the patent suggests that a “user walking to a hole may be delivered ABS messages, including reminders or instructions on how to play a particular hole.” But golf apps were already doing this. The Patent Office didn’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 crowdsourcing contest to find the best prior art to invalidate the ’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 can contact EFF and we can help you find counsel.

    We have long complained that the Patent Office promotes patent trolling by granting obvious and/or abstract software patents. The history of the ’648 patent shows how the Patent Office’s failure to properly review applications leads to bad patents falling into the hands of trolls.

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