Why the Ninth Circuit Got It Wrong on National Security Letters and How We’ll Keep Fighting



  • In a disappointing opinion issued on Monday, the Ninth Circuit upheld the national security letter (NSL) statute against a First Amendment challenge brought by EFF on behalf of our clients CREDO Mobile and Cloudflare. We applaud our clients’ courage as part of a years-long court battle, conducted largely under seal and in secret.

    We strongly disagree with the opinion and are weighing how to proceed in the case. Even though this ruling is disappointing, together EFF and our clients achieved a great deal over the past six years. The lawsuit spurred Congress to amend the law, and our advocacy related to the case caused leading tech companies to also challenge NSLs. Along the way, the government went from fighting to keep every single NSL gag order in place to the point where many have been lifted, some in whole and many in part. That includes this case, of course, where we can now proudly tell the names of our clients to the world.

    No matter what happens with these particular lawsuits, we are not done fighting unconstitutional use of NSLs and similar laws.

    Making sense of a disappointing ruling

    National security letters are a kind of subpoena issued by the FBI to communications service providers like our clients to force them to turn over customer records. NSLs nearly always contain gag orders preventing recipients from telling anyone about these surveillance requests, all without any mandatory court oversight. As a result, the Internet and communications companies that we all trust with our most sensitive information cannot be truthful with their customers and the public about the scope of government surveillance.

    NSL gags are perfect examples of “prior restraints,” government orders prohibiting speech rather than punishing it after the fact. The First Amendment embodies the Founders’ strong distrust of prior restraints as powerful censorship tools, and the Supreme Court has repeatedly said they are presumptively unconstitutional unless they meet the “most exacting” judicial scrutiny. Similarly, because NSLs prevent recipients from talking about the FBI’s request for customer data, they are content-based restrictions on speech, which are subject to strict scrutiny. So NSL gags ought to be put to the strictest of First Amendment tests.

    Unfortunately, the Ninth Circuit questioned whether NSLs are prior restraints at all. And although the court did acknowledge they are separately content-based restrictions on speech, it said the law is narrowly tailored even though it plainly allows censorship that is broader in scope and longer in duration than the government actually needs. As a result, the court held the government’s interest in national security overcomes any First Amendment interests at stake.

    The ruling is seriously flawed.

    Not-so-narrow tailoring

    In order to find that the law satisfied strict scrutiny, the court overlooked both the overinclusiveness and indefinite duration of NSL gag orders. Narrow tailoring requires that a restriction on speech be fitted carefully to just what the government needs to protect its investigation and that no less speech-restrictive alternatives are available.

    But NSLs are often wildly overinclusive. For example, they prevent even a company with millions of users like Cloudflare from simply saying it has received an NSL, on the theory that individual users engaged in terrorism or espionage might somehow infer from that fact alone that the government is on their trail.

    The court admitted that a blanket gag in this scenario might well be overinclusive, but it simply deferred to the FBI’s decisionmaking. But of course, under the First Amendment, decisions about censorship aren’t supposed to be left to officials whose "business is to censor.” And here, we know that NSLs routinely issue to big tech companies with large numbers of users like both Cloudflare and CREDO, and only in rare circumstances does the FBI allow these companies to report on specific NSLs they’ve received.

    Similarly, the FBI often leaves NSL gags in place indefinitely, sometimes even permanently. Indeed, the FBI has told our client CREDO that one of the NSLs in the case is now permanent, and the Bureau will not further revisit the gag it imposed to determine whether it still serves national security. Here again, the court acknowledged that at the least, narrow tailoring requires a gag “must terminate when it no longer serves” the government’s national security interests. But instead of applying the First Amendment’s narrow tailoring requirement, the court declined to “quibble” with the censoring agency, the FBI, and its loophole-ridden internal procedures for reviewing NSLs. Nevertheless, these procedures “do not resolve the duration issue entirely,” as the Ninth Circuit understatedly put it, since they may still produce permanent gags, as with CREDO. As a result, the court suggested that NSL recipients can repeatedly challenge permanent gags until they’re finally lifted.

    The problem of prior restraints and judicial review

    However, that points to the other fundamental problem with NSLs: they are issued without any mandatory court oversight. As discussed above, prior restraints are almost never constitutional. The Supreme Court has said that even in the rare circumstance when prior restraints can be justified, they must be approved by a neutral court, not just an executive official. But the NSL statute doesn’t require a court to be involved in all cases; instead, judicial review takes place only if NSL recipients file a lawsuit, like our clients did, or if they ask the government to go to court to review the gag using a procedure known as “reciprocal notice.”

    The Ninth Circuit had two responses to this lack of judicial oversight.

    First, it wrongly suggested the law of prior restraints simply does not apply here. The theory is that unlike cases involving newspapers that are prevented from publishing, NSL recipients haven’t shown a preexisting desire to speak, and when they do, they’re asking to publish information they supposedly learned from the government. But as we pointed out, that’s inconsistent with case law that says, for instance, that witnesses at grand jury proceedings—which are historically both secret and subject to court oversight—cannot be indefinitely gagged from talking about their own testimony. NSL gags go much further.

    Second, the court suggested that even though the burden is on NSL recipients to challenge gags, this is a “de minimis” burden that doesn’t violate the First Amendment. When Congress passed the USA FREEDOM Act in 2015, it gave recipients the option of invoking reciprocal notice and asking the government to go to court rather than filing their own lawsuit. That’s simply not good enough; the First Amendment requires the government be the one to go to court to prove to a judge it actually requires an NSL accompanied by a gag. Not to mention that forcing companies that receive NSLs to fight them in court and defend user privacy may actually be a heavy burden.

    Big progress nonetheless

    Despite these considerable errors in the Ninth Circuit’s opinion, we shouldn’t lose sight of progress made along the way. Nearly all of the features of the NSL statute that the court pointed to as saving graces of the law—the FBI’s internal review procedures and the option for reciprocal notice most notably—exist only because Congress stepped in during our lawsuit to amend the law.

    So what’s left to providers that receive NSLs? Push back on the gags early and often. The “reciprocal notice” process, which the government says only requires a short letter or a phone call, should be done as a matter of course for any company receiving an NSL. And since the Ninth Circuit said that courts retain the ability to re-evaluate the gags as long as they remain in place, gagged providers should ask a court to step in and make sure the FBI can still prove the need for the gag—potentially over and over—until the gag is finally lifted. EFF wants to help with this, and we’re happy to consult with anyone subject to an NSL gag.

    We’ve also encouraged technology companies to make the best of the reciprocal notice procedure as part of our annual Who Has Your Back? report. If the government continues to argue that recipients don’t necessarily “want to speak” about NSLs, we can now point to the growing trend of major tech companies—Apple, Adobe, and Dropbox, among others—that have committed to invoking reciprocal notice and challenging every NSL they receive.

    Finally, we’ve seen other courts question gag orders in related contexts, and we’ve supported companies like Facebook and Microsoft in these fights. We’re confident that in the long run, these prior restraints will be roundly rejected yet again.

    Related Cases: National Security Letters (NSLs)In re: National Security Letter 2011 (11-2173)In re National Security Letter 2013 (13-80089)In re National Security Letter 2013 (13-1165)

    https://www.eff.org/deeplinks/2017/07/why-ninth-circuit-got-it-wrong-national-security-letters-and-how-well-keep





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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