When Tweets Are Governmental Business, Officials Don't Get to Pick and Choose Who Gets To Receive, Comment On, And Reply to Them. That Goes For the President, Too

  • We’ve taken a stand for the First Amendment rights of individuals to receive and comment on social media posts from governmental officials and agencies. We’ve received a lot of good questions about why we believe that public servants—mayors, sheriffs, senators, even President Donald Trump—can’t block people whose views they dislike on Twitter without violating those persons’ free speech rights. Some question why citizens have a right to receive an official’s private Twitter account—@realdonaldtrump, for example. Others point out that Twitter isn’t a government forum with an obligation to allow users access to Trump’s messages, and others say users can still use workarounds to see the tweets of those who have blocked them.

    We’re taking a deep dive into the First Amendment here to explain our thinking and our reading of the law that supports our position. As you read, bear this in mind: the First Amendment doesn’t just protect your right to speak your mind. It also protects your right to receive, read, hear, see, and obtain information and ideas.

    We filed a “friend of the court” brief in a lawsuit brought by the Knight First Amendment Institute and several Twitter users who have been blocked by President Trump from the @realdonaldtrump account. The president has admitted in the lawsuit that he blocked them because he objected to the viewpoints they expressed in replying to his tweets or in their own tweets. The lawsuit names President Trump, acting White House communications director Hope Hicks, White House press secretary Sarah Huckabee Sanders, and Daniel Scavino, White House deputy director of social media, as defendants. The case is Knight First Amendment Institute v. Trump.

    The government was not allowed to pick and choose who gets to receive official statements in the predigital age, and that’s still true in the digital age when public servants are increasingly relying on social media to communicate with the public

    Although that case is specifically about President Trump’s Twitter feed, we see this as a much broader issue. We frequently receive reports from community activists and other social media users who were blocked from commenting on an agency’s Facebook page, or prevented from contributing to a community discussion prompted by an officials’ tweet, or have faced similar barriers to participation in public debate. We receive reports about how governmental officials manipulate social media comments to exclude opposing views to create the impression that hotly contested policies are not contested at all. And we realize, in seeing how agencies use social media to quickly disseminate emergency information during the recent spate of natural disasters, that the ability to receive such messages can be a matter of life and death.

    The main focus of our brief was thus to detail for the court how governments all across the country and at every level—city, county, state, and federal—use social media platforms like Twitter, Facebook, and Instagram to communicate with the public about the business of government. These same platforms allow members of the public to communicate back to them and with each other. Governmental use of social media is commonplace and pervasive, and lawmakers view social media as vital to their work.

    As we wrote in the brief:

    In a survey of members of Congress and their staff, the Congressional Management Foundation found that 76% of respondents felt that social media enabled more meaningful interactions with constituents; 70% found that social media made them more accountable to their constituents; and 71% said that constituent comments directed to the representative on social media would influence an undecided lawmaker. Congressional Management Foundation, #SocialCongress2015, (2015)

    . . . .

    State legislatures also extend public debate in their chambers to social media forums so that they are more visible by the public, specifically their constituents. In New York, debates over funding and employee salaries between the legislature and the governor’s office took place on Twitter. In Maryland, legislators debated the benefits of state legislation versus county regulations. And in Georgia, Representatives engaged in heated debate over the removal of confederate monuments.

    We also provided examples of how during the hurricanes in Houston, Florida, and Puerto Rico, and the firestorms in Sonoma and Napa, officials used social media to quickly disseminate evacuation orders, safe travel routes, and forecasts to the public.

    When elected officials choose to give speeches in a park, hold town hall meetings in a school stadium, or tweet out safety instructions to flood victims, the public’s First Amendment rights to receive those messages are triggered

    You have a right to receive and read government communications sent via social media

    When governmental officials and agencies choose a particular technique or technology to communicate with the public about governmental affairs—programs, policies, services, opinions, and safety measures—they have endowed the public with First Amendment rights to receive those messages. And this right is infringed when government denies access to these messages because it disagrees with someone’s viewpoints.

    The principal of having First Amendment rights to receive government communications has nothing to do with Twitter or Facebook. The medium of communication, whether it’s online, television, radio, print, or bullhorn—isn’t the issue. When elected officials choose to give speeches in a park, hold town hall meetings in a school stadium, stand on a street corner giving safety instructions to flood victims, or debate each other on Twitter, the public’s First Amendment rights to receive those messages are triggered.

    Prior to social media, officials couldn’t block their critics from receiving official governmental communications. When the president could only use radio and television to communicate with the public, he could not compel broadcasters to exclude certain neighborhoods from access to the broadcasts because residents in that area had protested against him. If a mayor delivered an official proclamation in a park, be it public or private, he could not have guards check each listener against a list of people who had written a letter to the editor criticizing them, and block letter writers from the event. In the digital age, the White House can’t block access to a press release on its website from certain ISP addresses because they belong to people who had criticized the president.

    There’s a well-developed body of law supporting these First Amendment rights that arose in the pre-social media context and logically applies to social media as well. Before social media, most individuals received official governmental communications through the news media. Newspapers would receive and republish press releases and send reporters to attend and report on press conferences. TV and radio news outlets would do the same, and also broadcast video or audio from such events. The Supreme Court has called this the press’s “surrogate” role—that is, the press standing in for the populace-at-large that cannot attend such events in person or receive communications directly. When officials or agencies tried to block media outlets from covering official events, which were otherwise generally open to the press, the news media would challenge those blocks in court and most commonly get favorable results. So, for example, the Mayor of Honolulu was not permitted to exclude a reporter, whom the mayor found was “irresponsible, inaccurate, biased, and malicious” in his reporting, from an otherwise open press conference. And a district attorney could not require reporters from a certain newspaper to make appointments to interview officials, while he made them available without appointments to all other media. And two mayoral campaigns were not permitted to exclude ABC from their election night rallies that were open to other news media. These are just a few examples where courts found that officials could not make it more difficult for disfavored news media to get official information than other news media.

    This law must apply to governmental communications through social media, in which messages go directly to the public and news media surrogates are not needed. Agencies and officials rely on social media to communicate with the public, and can’t pick and choose who gets to receive their messages, like they couldn’t pick and choose which news media can cover their press conferences. The fact that social media makes it really easy for a governmental official tweeting about governmental business to block a critic, doesn’t make it constitutional to do so.

    The fact that social media makes it really easy for a government official tweeting about government business to block a critic, doesn’t make it constitutional to do so

    We think this only makes sense. Public officials must not have the ability to block individuals whose viewpoints they dislike from receiving evacuation orders, or make it more difficult for them to view public conversations about how government operates, how policies are made, and what services are offered. That’s exactly the kind of viewpoint discrimination the First Amendment forbids.

    You have a right to comment in government’s social media posts

    Blocking infringes First Amendment rights in another way as well­—by preventing an individual from adding to the public conversation, replying to or commenting upon an officials’ social media post, and preventing them from communicating with governmental officials directly by way of tagging.

    Officials at all levels of government, like the mayors of Boston and Cleveland, use social media to hold “virtual town halls,” creating a space for the public to comment on specific projects or public affairs in general. A tweet from a governmental official can lead to a discussion among constituents debating the merits of a policy announcement. Anyone can easily see the same in the comments posted to agency Facebook pages. Social media sites in this way have become important places for democratic engagement and debate. We cited these and other examples in our brief to show that those who are blocked are excluded from speaking in these discussions.

    In creating social media accounts with these communication features, like a Facebook page with a comments section, or a Twitter account that permits tagging and replies, the government endows the public with First Amendment rights to speak in these forums.

    The First Amendment forbids viewpoint-based speech restrictions like those that result from blocking. The legal doctrine that applies here is the same one that is used to determine the government’s ability to regulate speech in government-controlled places or programs—the Forum Doctrine.

    Essentially, government-controlled forums for speech are divided into three categories: public forums which are created or historically used (like parks or streets) for the purpose of allowing private speakers to freely converse; non-public forums in which some private speaking is occasionally permitted even though the forum is not generally open for private speakers; and non-forums, more commonly known as “government speech,” because there are in actuality no private speakers at all; the government is the only speaker even though the government sometimes enlists or employs private people to speak for it.

    The president’s tweets are official statements—as his press secretary said in June and Justice Department lawyers told a judge on Nov. 14–and the public has a First Amendment right to receive them

    Think of a bulletin board in a public library. The board that’s open to anyone to post anything—help-wanted ads, books to trade, meetings, etc.—is akin to a public forum. A bulletin board that’s mostly for the library’s own messages—hours of operations, library events, librarian recommendations—but the library occasionally, in its discretion, allows posting of some private messages, is a non-public forum. The last board is one that’s only for the library’s messages. That’s a non-forum. (There’s also a category that’s in between public and non-public forums: limited public forums. In limited public forums, the government opens the forum only for a specific category of content, for example, a library bulletin board reserved only for private messages about book groups. Limited public forums operate like public forums when the speech is of specified subject matter, but operate like non-public forums with respect to all other content.)

    The level of control over speech the government may exercise varies with the forum:

    • Generally, in public forums, the government may not limit the content or viewpoint of private speech. It may only reasonably limit the time, place, and manner of private speech in a way that preserves alternative methods for private speech. So, in our library example, the library could generally limit the size of all notes posted and the length of time they can remain on the board. But it could not block a notice about a dance party or one that criticized the library for not having longer hours. In limited public forums, the government can enforce its subject matter limitation, as long as reasonable in light of the purposes of the forum, but cannot discriminate against viewpoints regarding that subject matter—so it could limit the board to reading recommendations, but it could not exclude recommendations it disagrees with;

    • In non-public forums, the government may limit the content of permissible private speech, but may not prohibit speech because it disagrees with the viewpoints expressed. So even if it occasionally, but not as a rule, allows an individual to post a book recommendation, it can’t deny an individual the right to post a recommendation it disagrees with;

    • And in the non-forum, the government can limit both content and viewpoint. Everything that’s posted is the library’s own speech, including any private speech the government may adopt and endorse as its own.

    Exactly which kind of forum (or non-forum) is created by a governmental social media account depends on the particular way the government operates it. An official could allow individuals to post comments on an agency Facebook page about anything. This will likely be a public forum. The official could open up the comments only about a specific agency proposal. This would be a limited public forum. An agency could as a rule exclude comments, making only the occasional exception—that’s a non-public forum. When an agency that makes all the comments itself, that’s government speech—the non-forum.

    From what we have seen, social media accounts commonly function as public forums where anyone can speak—like a gathering spot in a park, or a street corner where a crowd has formed. As we wrote in the brief:

    It is clear then that in practice, social media platforms like Twitter that allow for the general public to comment upon governmental posts, or communicate directly with officials, agencies, or to otherwise participate in a publicly viewable debate, function like the paradigmatic speakers’ corner in a public park. See Perry, 460 U.S. at 45 (identifying streets and parks as “quintessential public forums” for “assembly, communicating thoughts between citizens, and discussing public questions”). Indeed, governmental social media accounts probably host these functions more than parks and streets currently do. As the Supreme Court recognized just last term, “While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, Reno v. American Civil Liberties Union, 521 U.S. 844, 868 (1977), and social media in particular.” Packingham, 137 S. Ct. at 1735 (included citation abbreviated) (explaining that a denial of access to social media was a significant abridgement of First Amendment rights given modern civic and social communication).

    In Knight First Amendment Institute v. Trump, we agree with the plaintiffs that @realdonaldtrump is operated like a public forum. The account permits tagging and replies and the reply feed and tagging functions are generally open to all. At any hour of the day or night you can view replies to the tweets that are full of praise or deeply critical. Viewpoint discrimination in such public forums plainly violates the First Amendment.

    But, importantly, because the president admits to viewpoint discrimination, it doesn’t really matter if his Twitter account is a public or non-public forum. Viewpoint discrimination is only tolerated in non-forums, where the government is the only speaker. Clearly that’s not the case for @therealdonaldtrump.

    But Twitter is a private platform that maintains some ability to block users itself. How can an official like Trump be restricted by the First Amendment from blocking people when Twitter itself can shut out users?

    It’s the president’s (and other officials’) use of Twitter that is subject to the First Amendment, not Twitter itself. So even if the social media platforms themselves make their own rules about who gets an account and what kind of speech is allowed, public agencies and officials can’t use the tools those platforms provide users to block followers on the basis of viewpoint.

    Courts have ruled in similar contexts that it’s unconstitutional for the government to use communication platforms, even private ones, for government business in ways that censor speech and prevents it from reaching the public.

    In one such case, a theatrical production company asked to use a privately-owned auditorium in Chattanooga under long-term lease with the city to present the musical “Hair,” a controversial play that featured nudity and obscene language. The Supreme Court ruled that the city’s decision to reject the theater company’s request violated the First Amendment. It didn’t matter that the theater owner retained some control over the use of the theater. The city could not use the exclusionary power granted to it under the lease in an unconstitutional way.

    In another case, television reporters from one network were barred, under threat of arrest, from covering live the post-election activities of candidates running for mayor of New York City. The venues for these events were privately owned and operated. Nevertheless, a federal appeals court ruled that once the press is generally invited, “there is a dedication of those premises to public communications use.” The court rejected the notion that the candidates could decide to exclude one network over others, saying “the danger would be that those of the media who are in opposition or who the candidate thinks are not treating him fairly would be excluded.”

    In both these cases, as here with Twitter, the venues and platforms used by government to communicate official business were private, with their own rules and operations. When officials use them for official business, they can’t under the First Amendment limit or block access to these spaces on the basis of viewpoint.

    This rule must apply whether the space is physical or digital.

    But @realdonaldtrump is his personal account! Shouldn’t these rules only apply to the official @POTUS account?

    We heard a few comments like this. To us, the important thing is that the platform, whether through an official or personal account, is being used to conduct the government’s business. The president’s tweets are official statements—as his press secretary said in June and Justice Department lawyers told a judge on Nov. 14–and the public has a First Amendment right to receive them.

    We’ve taken a similar position in other situations where private accounts were used to conduct government business.

    For example, we have argued that governmental officials emails that are sent or received as part of the official’s governmental duties are public records, even if the official uses a private email account. As we pointed out in our brief, courts that have considered the issue have agreed.

    Does this mean I can’t block anyone?

    A non-governmental actor can block anyone they want without violating the First Amendment. The First Amendment only restricts the government’s ability to limit speech in this context.

    But how are anyone’s rights violated if users can view the president’s tweets even if they are blocked from getting them in their own feeds?

    It’s unconstitutional for the government to make it more difficult to receive information or speak. Users can’t be required to find workarounds to exercise their fundamental civil liberties.

    The government was not allowed to pick and choose who gets to receive official statements in the predigital age, and that’s still true in the digital age when public servants are increasingly relying on social media to communicate with the public. That’s why we asked the court to recognize that government officials, even the president, who use the power of social media to create a forum for individuals to communicate with him and to each other, must respect the public’s First Amendment right to receive and comment on, whether negatively or positively, their statements.

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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