E-commerce RCEP Chapter: Have Big Tech’s Demands Fizzled?

  • Post-Mortem of Asia-Pacific regional IGF Panel Discussing Trade Rules

    Over the past month, trade officials of the ASEAN group of countries and its six biggest trading partners have been frantically working to finalize the Regional Comprehensive Economic Partnership (RCEP). Expected to be ratified later this year, the RCEP is the largest mega-regional trade treaty currently being negotiated, and the first to include norms and rules on e-commerce.

    Despite countries such as Japan, Korea, Australia, and New Zealand pushing for a detailed chapter on e-commerce based on the model of the Trans-Pacific Partnership (TPP), the latest information we have from the negotiating room is that the e-commerce chapter of RCEP will be far less ambitious, dealing mostly with familiar and uncontentious issues such as standards for electronic payments and signatures.

    This will displease big tech companies that had hoped that RCEP would include rules on cutting-edge (but more contentious) topics like forced data localization. Data localization rules (such as rules requiring data about local users to be stored on servers within the country) would increase costs for tech companies and raise entry barriers for small competitors.

    But some countries favor these rules because it allows them to subject overseas platforms to local privacy regulations, or for more sinister reasons such as making the servers more easily accessible to local surveillance programs. EFF’s position is that although data localization is rarely justified, if rules prohibiting it are to be included in trade agreements, it is essential that each country has adequate privacy and data protection laws to protect their citizens’ data.

    Transparency Demands

    So far, text specific to e-commerce have not been made publicly available and the leaked Terms of Reference for the Working Group on ecommerce (WGEC) is the only reference to what issues could make an appearance in the RCEP. EFF has been advocating for transparency in trade through the active dissemination of provisions related to digital economy being discussed or included in the RCEP.

    We have also been pushing negotiating countries to open up the trade processes in order to bring them into closer alignment with the Internet community’s norms of open, multi-stakeholder governance. Unfortunately, at this late stage of negotiations and amidst intensifying pressure to conclude the agreement the opportunities for broad and meaningful public participation in the RCEP process remain limited.

    To address the lack of public inputs and facilitate engagement between RCEP negotiators and affected stakeholders EFF has been organising a series of interventions. We organised a panel on Intellectual Property at the 18th Round in Manila, Philippines and another at the recently concluded 19th round in Hyderabad, India focusing on e-commerce issues. The most recent of these interventions was a panel on ‘Trade Rules for the Digital Economy: Asia’s Agreement at the WTO and RCEP’ at Asia Pacific regional Internet Governance Forum (APrIGF) which took place in Bangkok from 26-29 July, 2017.

    APrIGF Workshop Report

    The discussions kicked off with an overview developments in global trade including shelving of large agreements such as TPP and TISA, the rise of regional treaties such as the NAFTA and RCEP and recent developments at the World Trade Organisation (WTO). While there is little public information on e-commerce provisions in the RCEP, issues included in the TPP as well as industry demands serve as reference for Internet governance areas that could be included.

    Professor Peng Hwa, Nanyang Technological University drew upon the important linkages between trade and Internet governance. Different national contexts and agendas are guiding the negotiating parties and their strategies with regards to e-commerce. Given how nascent most issues related to digital economy are, there is need for continued dialogue and a measured approach to developing consensus based global rules.

    Rajnesh Singh, Director Asia Pacific Regional Bureau Internet Society highlighted the challenges that trade committees and negotiators face - from uneven representation of nations, and resources to varying interpretation of the same issue. The push to regulate cross-border e-commerce underlines the need for concerted effort from civil society, academia and the technical community to ensure user rights are being inserted in these agreements.

    Ms Duangthip Chomprang, Director for Regional Cooperation and Assistance at the International Institute for Trade and Development pointed out key factors behind regional efforts to push ICT issues through trade. First, almost 70% of all global preferential trade agreements are in the Asia Pacific region, and there has also been a steady decoupling between developed and developing countries of the region. This has created the political will to push for provisions on the digital economy. Second an important, if often overlooked linkage is between the United Nations’ Sustainable Development Goals (SDG) which includes provisions to ensure trade and commerce agreements contribute to the achievement of these goals.

    While there is a long way to go in improving transparency of the RCEP negotiations it was encouraging to have Mr Akhuputra, Chair the Working Group on e-Commerce (WGEC) to provide insights both into the process and the challenges of including as yet unresolved technological issues. Though the RCEP negotiations are in the 19th round the WGEC has had nine meetings so far. Mr Akhuputra suggested that the next round in South Korea may be the final meeting of the e-commerce negotiators.

    Although the text remains secret, the e-commerce chapter is believed to be shorter and less detailed than the chapters on goods and services. Rules and text included will be broad enough to factor for the development gaps between participating countries. A provision likely to make an appearance, since it is included in more than 40% of the 90 trade agreements that are active in the region, covers paperless trade. Provisions for the use of international standards for paperless trade would apply to electronic authentication, e-signatures and e-documents. He highlighted the tensions between push for technologies such as blockchain and smart contracts and inclusion of text in trade agreements that seek “mutual recognition” and compliance with “international standards”.

    Complicating the work of WGEC are traditional segregations of areas such as goods and services which are not as easy to import in the digital context. For example, rules on electronic transmissions and goods are negotiated separately in trade agreements. However there is no consensus on how to treat electronic transmissions that transform into goods. Provisions on electronic transmission and services could impact the regulation of 3D printing technologies which are expected to shape the future of medical ecosystem in developing and less developed nations.

    We are far from seeing which concerns have been addressed or what the final text will look like, but the contours of RCEP on e-commerce are beginning to materialise. Even though these details are just emerging, it may already be too late for civil society to influence the drafting of specific provisions as the WGEC is attempting to freeze the text. However, there remains a small chance that the Trade Negotiating Committee may decide to extend negotiations or open up specific issues.

    For now it seems that the e-commerce chapter is going to be less ambitious and contentious than that of the TPP. Nonetheless EFF will continue to maintain a close eye on e-commerce developments in the RCEP, and continue to advocate for better transparency and public access to the negotiations.

    You can watch the full video of the discussions in our workshop here: https://www.youtube.com/watch?v=dpFsJjWaeB4&t=744s


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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