Liveblogging Today’s Senate Judiciary Hearing on Section 702

  • Another group of lawmakers is starting the debate over whether and how to reauthorize an online surveillance power set to sunset at the end of the year.

    The Senate Judiciary Committee is holding a hearing this morning on Section 702, as enacted by the FISA Amendments Act. That is the authority the government claims justifies the warrantless Internet surveillance of innocent Americans and others around the world and includes controversial Upstream and PRISM programs.

    We’ve long argued on the Hill and in the courts that this surveillance violates privacy protections, including the Fourth Amendment, and that lawmakers should let the sun set on the law.

    Today’s hearing comes after the House Judiciary Committee had a hearing on the expiring law in March, and the Senate Intelligence Committee had a hearing earlier this month. As we did with those hearings, we’ll be live-blogging this morning’s hearing. Follow along below.

    9:13 a.m. PDT - The hearing has concluded. Thanks for reading!

    9:10 a.m. PDT - Collins noted the concerns from the ODNI and the NSA that it would be difficult—and in some circumstances even privacy invasive—for the intelligence community to come up with an estimate of the number of U.S. persons impacted by “incidental” surveillance under Section 702. But she said she “adds [her] voice” to the calls that the intelligence community continue to work to find a way to deliver on the long-promised estimate.

    9:03 a.m. PDT - Goitein tells Sen. Lee that every time the government conducts a backdoor search, it is an independent privacy violation. She points out that the list of crimes for which the DOJ can use backdoor search materials to prosecute is not public. Furthermore the DOJ has “spotty compliance at best” with the statutory requirement of notice to defendants against whom 702 information has been used.

    8:55 a.m. PDT - Sen. Richard Blumenthal hinted at the idea of expanding the role of FISC amici, the outside experts that the FISC can call on when the government seeks FISC approval for surveillance that raises new legal questions. Blumenthal—who has long fought for a large role for a “special advocate” in FISC proceedings—asked witnesses how to improve the amicus process. Along the lines of Feinstein’s proposal, Klein suggested involving the amici when the FISC considers annual 702 recertification. Goitein noted that, under the system set up by the USA FREEDOM Act, the FISC chooses when to involve amici, and there’s no way for the amici to appeal the court’s decisions.

    8:50 a.m. PDT - In response to a question from Sen. Grassley, Olsen says it would be “unwise” to impose a warrant requirement for backdoor searches of Americans’ communications incidentally collected under Section 702. Goitein points out it that if the NSA had intentionally sought to directly target these Americans’ communications, a warrant would be required in the first instance. For that reason, she believes backdoor searches violate “the spirit if not the letter” of Section 702’s prohibition on reverse targeting.

    8:30 a.m. PDT - The first panel of intelligence officials has concluded, and the second panel of witnesses has started. They are former General Counsel of the NSA Matthew Olsen (currently at IronNet Cybersecurity), Center for a New American Security’s Adam Klein, Elizabeth Goitein of the Brennan Center for Justice, and Elisebeth Collins of the Privacy and Civil Liberties Oversight Board.

    8:15 a.m. PDT - NSA’s Morris evaded questions from Sen. Patrick Leahy about when the NSA would seek court approval to reinstate “about collection” under Section 702. While Morris said the NSA does not currently have plans to do so, he also said the agency is “always looking at ways to improve the technical controls we have in place.” He also reiterated the agency’s opposition to a legislative ban on about collection, and declined to give a concrete answer to Leahy’s question about when the NSA would have a technical fix that would enable the agency to restart about collection.

    8:08 a.m. PDT - Sen. Sheldon Whitehouse posed a question for the record asking the government to detail all the ways in which it “polices use and abuse of 702 information.”

    7:55 a.m. PDT - Sen. Al Franken expressed his frustration with the ODNI’s professed inability to provide a “meaningful” accounting of American communications “incidentally” swept up in Section 702 surveillance. Pointing to the 2011 FISA court proceeding in which the NSA provided an estimate of wholly domestic communications it had collected, he pressed ODNI to come up with a similar estimate.

    7:50 a.m. PDT - Sen. Mike Lee brought up the idea of tailoring the definition of “foreign intelligence information” to more narrowly focus on information related to national security threats. The NSA’s acquisition of communications under Section 702 must have the “significant purpose” to obtain “foreign intelligence information,” but that term is broadly defined and, in the past, has included things like information relevant to foreign affairs.

    Stuart Evans, the Deputy Assistant Attorney General for Intelligence, replied that he couldn’t substantively discuss the definition of “foreign intelligence information” in an open hearing and pivoted to defending how the intelligence community identifies targets and then audits those identifications.

    7:40 a.m. PDT - Sen. Amy Klobuchar pushed back on the intelligence officials’ testimony that Section 702 should be reauthorized without a sunset. That would give Congress “no leverage to get changes or to work on things,” she said, noting that Sen. Feinstein—who has historically defended the intelligence community—said she would oppose reauthorization without a sunset.

    7:28 a.m. PDT - In response to questions from Sen. Feinstein, the panel of intelligence officials pushed back on the idea that Congress should codify the end of “about collection” under Upstream. Feinstein asked about the possibility of working with the NSA to draft a legislative amendment to bar about collection, and the panel of witnesses resoundingly answered that the intelligence community would oppose such an amendment.

    The NSA’s Paul Morris told Feinstein that the NSA would like to keep open the possibility of restarting about collection if they can find a technical solution that minimizes the amount of unnecessary information about Americans obtained through about collection. “We think that, given enough time, we might be able to come up with a technical solution that addresses the [FISA] Court’s concern,” he said.

    The fact that the NSA is already thinking ahead to restarting about collection makes it even more necessary that 702 reforms include codifying the end of about collection.

    7:16 a.m. PDT - Paul Morris, NSA’s Deputy General Counsel, publicly discussed for the first time an example of the intelligence community using Section 702 to discover and take down a smartphone app. Without going into any more details, Morris said the agency obtained information in 2016 about the state-sponsored smartphone app and had it removed from app stores.

    7:10 a.m. PDT - FBI National Security Branch Executive Assistant Director Carl Ghattas said that FBI only receives “raw” 702 communications if targeted selectors are relevant to an investigation but admits that FBI runs “significantly more” queries for US persons’ names than NSA.

    6:58 a.m. PDT - ODNI Acting General Counsel Bradley Brooker repeated—almost verbatim—Director of National Intelligence Dan Coats’ excuses from earlier this month about why the intelligence community is failing to follow through on its promise to Congress to provide an accounting of the number of U.S. persons whose communications have been “incidentally” swept up through 702 surveillance. According to Brooker and Coats, it would be “unpalatable” to have the intelligence community divert resources from national security threats to conduct research into the individuals impacted by 702 surveillance to see if they’re U.S. persons.

    As we’ve said before, we think it’s unpalatable for the intelligence community to ask Congress to reauthorize a law without giving them an understanding of how that law impacts their constituents. The fact that they’re hiding behind “privacy and civil liberties concerns” makes it even worse.

    6:50 a.m. PDT - In her opening statement, Sen. Feinstein notably did not mention her call that 702 reauthorization legislation codify the end of “about collection,” or collection of communications that mention a foreign intelligence target’s email address or other identifier. About collection is a controversial and privacy-invasive technique that the NSA ended earlier this year. EFF and other privacy advocates see the codification of the end of “about collection” as a critical piece of any reform efforts. Feinstein did, however, briefly touch on her push to formalize the role of an outside counsel in the Foreign Intelligence Surveillance Court’s consideration of Section 702 annual certifications.

    6:48 a.m. PDT - Senate Judiciary ranking member Dianne Feinstein—who is also a senior member of the Senate Intelligence Committee—started her opening statement with a jurisdiction grab, reminding her colleagues that while the Intelligence Committee has a head start on 702 reauthorization this year, the law is ultimately within the Judiciary Committee’s jurisdiction.

    She specifically mentioned a new bill from Senate Intelligence Republicans, including ardent surveillance defender Sen. Tom Cotton, that would permanently reauthorize Section 702. Feinstein reiterated her opposition to the bill, saying “Congress has an important oversight role to play in these measures,” and that “the sunset allows us to review and revise” the law as technology changes.

    6:42 a.m. PDT - Senate Judiciary Chairman Chuck Grassley opened the hearing with a rundown of recent terrorist attacks and praise of Section 702 surveillance as a counterterrorism tool. He overstated the oversight of 702 surveillance “by all three branches” of the government, but he did acknowledge concerns about the way innocent Americans’ communications are warrantlessly and “incidentally” collected under Section 702. Read Grassley’s full written opening statement here.

    6:34 a.m. PDT - The hearing is starting now.

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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 and clicked on a product category, you would be first diverted to and then redirected to Although imperceptible to the user, this detour was enough to persuade the browser that 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.


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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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