Opponents Hope to Mislead California’s Legislators Before They Vote on Broadband Privacy Next Week



  • The large broadband providers and their associations who spent millions in DC to repeal broadband privacy just a few months ago in Congress are fighting to protect their victory in California. They are throwing every superficial argument against AB 375 in hopes to confuse California’s legislature enough to give them a pass despite an overwhelming 83 percent of the American public demanding a response to the Congressional Review Act repeal of their privacy rights.

    EFF obtained copies of their letters and feel it is vitally important California’s elected officials know that the industry is unloading a plethora of misleading arguments, some of which they themselves are actively contradicting in other forums. Here are some examples of their attempt to have it both ways—where they repealed our privacy rights in D.C. yet express shock and dismay that state legislatures would respond to the public’s demands.

    We Warned ISPs That Repealing the Federal Protections Would Result in a Patchwork of State by State Laws

    The irony in the very companies who spent millions of dollars lobbying in DC to repeal our federal broadband privacy rights are now fighting state attempts to protect consumers because they supposedly prefer a federal rule. It is not lost on EFF that each state having to engage in broadband privacy individually without a federal floor is not ideal, we have said as much during the fight in DC. While California’s AB 375 represents model legislation EFF supports, not every state will enact the same law and some states may leave their citizens completely unprotected. That is a far cry from where we were in 2016 before Congress repealed our broadband privacy rights, and it is because of companies like Comcast, AT&T, and Verizon that we have arrived at this point.

    We fought hard to stop Congress from repealing our broadband privacy rights. Tens of thousands of Americans picked up the phone to demand Congress vote no on the broadband privacy repeal but they were ignored. Today 83 percent of the public, regardless of political affiliation, all believe that ISPs must secure their permission first before being allowed to sell their personal data. In other words, more than 8 out of 10 Americans support what AB 375 seeks to codify into law.

    Despite our repeated warnings to the industry and Congress that eliminating a uniform federal framework that protected personal information will result in states responding to protect their citizens, they pushed ahead and now find themselves on defense across the country.

    EFF supports states responding to the demands of the public for privacy protections, particularly in light of Congress having failed to do so. It has become even more important as the Federal Communications Commission itself is actively undermining consumer protections on behalf of Comcast, AT&T, and Verizon. It should
    surprise no one that state legislators who care about consumer privacy will act and ultimately having as many state laws on the books as possible to protect personal information is a superior outcome to having no clear protections at all.

    And if AB 375 becomes law, we hope it would serve as the model for states across the country to avoid a patchwork problem, but again this problem was created by the ISP lobby repealing the federal rules in the first place.

    AT&T is a Leader in Contradicting Itself

    To California’s Legislature, AT&T right now is saying the following:

    “AT&T and other major Internet service providers have committed to legally enforceable Privacy Principles that are consistent with the privacy framework developed by the FTC over the past twenty years.”

    In essence, there is no need to pass a state law because the Federal Trade Commission can enforce the law on us. But what exactly is AT&T saying about the FTC’s enforcement power in the courts?

    Source: AT&T’s 2016 Brief in FTC vs AT&T Mobility

    That is right. They are arguing that the FTC has no legal enforcement power over them. They are making that argument right now in the Ninth Circuit Court of Appeals, which means if they win there a second time (the case is on en banc appeal) then California will have no Federal Trade Commission enforcer on privacy.

    On other fronts AT&T and others are arguing that the bill is unnecessary because the FCC’s powers remain perfectly intact after the Congressional Review Act repeal.

    “The bill is not needed. The FCC retains statutory authority to enforce consumer privacy protections with respect to Internet service providers.” - AT&T

    “We want to assure you that the action taken by Congress earlier this year has changed nothing for consumers.” -CompTIA, TechNet, Bay Area Council

    We have explained in detail exactly what Congress did when it invoked the Congressional Review Act repeal of our broadband privacy rights. Ironically, last week AT&T agreed with us when their association US Telecom petitioned the FCC to help clear up the mess created by the CRA broadband privacy repeal because it has also muddied up the waters for their efforts to combat robocalls. In essence, they do not know their legal rights to sharing telephone customer information in that instance just like customers now no longer have clear legal rights to their broadband privacy. It is also worth noting that the FCC that is on course now to end the legal obligations of AT&T to preserve an open Internet and protect privacy.

    “We Don’t Engage in That Kind of Activity”

    This is the biggest whopper they are spreading here in Sacramento because anyone who takes the time to look up the history of ISP conduct will quickly find out that they have been trying to profit off their customers’ personal information for years. The problem for them has been the law got in the way (until recently) or elected officials put political pressure on ISPs to change their plans.

    In 2008, Charter play tested the idea of recording everything you do on the Internet and packaging it into profiles by using Deep Packet Inspection technology that was capable of detailed monitoring of your activity. The bipartisan political response from Congress was fierce and Charter quickly backed down from its plans. It is worth noting that cable broadband services were not clearly covered under the Communications Act’s privacy obligations until the 2015 Open Internet Order.

    We know as of 2015 telecom carriers work with Ad Adage to “ingest” data from cellphones close to 300 times a day every day across 20 to 25 million mobile subscribers (we aren’t told which mobile telephone companies participate in this practice, they keep that a secret). That data is used to inform retailers about customer browsing info, geolocation, and demographic data.

    We know in 2011 ISPs engaged in search hijacking where your Internet search queries were monitored in order to be rerouted in coordination with a company called Paxfire.

    We know AT&T was inserting ads into the traffic of people who use their wifi hotspots in airports. Even small rural ISPs have engaged in ad injection to advertise on behalf of third parties.

    We know AT&T, Sprint, and T-Mobile preinstalled “Carrier IQ” on their phones, which gave them the capability to track everything you do, from what websites you visit to what applications you use. It took a class action lawsuit for the carriers to begin backing down from this idea.

    And lastly, we know in 2014 Verizon tagged every one of their mobile customers’ HTTP connections with a semi permanent super-cookie, and used those super-cookies to enable third parties such as advertisers to target individual customers. Not only that, but Verizon’s super-cookie also allowed unaffiliated third parties to track you, no matter what steps you took to preserve your privacy. And worst of all, AT&T was going to follow suit to get in on the action but quickly retreated after Verizon got into legal trouble with the federal government.

    Pretending a Straight Forward and Widely Accepted Definition of Broadband is Untested

    In several opposition letters the opponents assert the definition of “Internet access service” may result in any Internet business suddenly becoming affected by the legislation. This is a false reading of the definition in the bill and likely an attempt to stall the legislation by pretending we have not been living with these definitions for seven years.

    AB 375’s definition of ISPs mirrors the Federal Communication Commission’s definition of broadband service, which has been on the books since 2010 to institute Network Neutrality. The Public Utilities Code (the underlying statute for the Public Utilities Commission) has connected the definition of broadband to the FCC’s definition for the last 11 years.

    AB 375 defines ISPs as follows:

    “Internet service provider” means a person or entity engaged in the provision of Internet access service, but only to the extent that the person or entity is providing Internet access service.

    “Internet access service” means a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service. “Internet access service” also encompasses any service that the Federal Communications Commission or the Public Utilities Commission finds to be providing a functional equivalent to the service described in this subdivision.

    Opponents are raising concerns with the term “functional equivalent” despite the 70 words preceding the term to limit and explicitly define what an eligible functional equivalent is. Lets break down the definition in its component parts to demonstrate. An ISP covered under AB 375 must be the following things:

    1. Mass-market retail service
    2. Transmit data by wire or radio
    3. Capable of receiving and sending data to all or substantially all Internet endpoints
    4. Includes capabilities that are incidental to and enable the operation of the communications service
      5)Does not include dial up Internet
    5. Directly provide the Internet access service
    6. Includes services the FCC or CPUC finds to do parts 1-6 above

    If this Level of Obfuscation and Attempts to Prevent a Law That Restores Your Broadband Privacy Rights Upsets You? You Need to Pick Up The Phone

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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
screen
re-attach a detached session tmux attach OR
tmux attach-session
screen-r
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

    https://www.eff.org/deeplinks/2017/12/arms-race-against-trackers-safari-leads-criteo-30

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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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