Rising Demands for Data Localization a Response to Weak Data Protection Mechanisms

  • Don’t Trust Data Localization Exceptions in Trade Agreements to Guarantee Protection of Personal Data

    The digital economy relies on cross-border provision of services and goods, and in the past government trade regulators have embraced the borderless nature of the Internet and adopted light-touch regulation. But with the growing perception of data as the new oil, governments around the world are now flexing their muscles and stepping up efforts to limit or tax cross-border data flows. Multiple countries have enacted laws localizing storage and processing of data within their territory or subjecting cross-border transfers to to strict conditions.

    The wave of data localisation policies suggest that a marked regulatory shift is underway. National localization is creating tension within trade negotiations such as RCEP, NAFTA, and TiSA in which countries like the United States, Singapore, Thailand and Japan, along with tech companies, are seeking to prohibit data localization practices.

    Although governments push for data localization to achieve diverse policy goals, there is an inherent conflict between the logic of most data localization efforts and the policy objectives that countries pursue by participating in free trade agreements. Resolving localization demands and reconciling conflicting ideologies and interests may be difficult to achieve through trade agreements.

    As in the case of copyright rules in trade agreements, developing trade solutions to data localization are sure to get caught up in the wider socio-politics of trade and Internet governance. Negotiating on data localization for the protection of personal information creates the risk of compromise on protections that should be a minimum guarantee, as countries could lay down localization conditions as a trade-off for respecting privacy rights.

    Policy Objectives for Pursuing Data Localisation

    Government demands for localization are driven by diverse rationales, one of which is security or surveillance concerns. Consider China’s National Security Law which limits operations and maintenance of “critical Internet infrastructure” to mainland China as matter of national and cyber security. Similarly, Vietnam and Indonesia mandate maintaining in-country servers for access by law enforcement agencies.

    The desire to attract investment, fuel innovation and create competitive advantage for local companies is another important logic driving localization efforts. When framed from the narrative of economic and employment gains, localization is politically appealing and enjoys support of local business constituencies. This approach seems to be at working for some countries. Google and Amazon Web Services (AMS) have announced data centers in Singapore, Taiwan and Japan. Alibaba Cloud, the computing arm of the Chinese company, announced that it would be setting up data centers in India and Indonesia.

    Protection of national autonomy or efforts to reign in the hegemony of US firms is also used to drum-up support for introducing rules for transfers of data. Last week, India’s telecom regulator issued a consultation paper exploring measures to address cross-border flow of information and jurisdictional challenges in the digital ecosystem. The regulator’s move appears to be triggered by its displeasure with Apple’s refusal to list an app developed by the regulator that tracks user’s messages and call logs to identify spam.

    Beyond the economic rationale, there is a growing perception that nations able to control data flows will fare better in the Internet governance order. For developing and developed countries alike, leadership with regard to digital economy is linked to establishing their claims of sovereignty in cyberspace. Therefore, nations mandate storage and processing of data within their jurisdiction. In a similar vein, governments may also lay down conditions for allowing transfer of data such as the company’s nation of incorporation or principal sites of operations and management. The new Chinese cybersecurity regulation defines the notion of territory not only based on the location of operations, but also of ownership.

    Not all localization demands are blanket bans on data transfers or on the use of foreign servers. Establishing local facilities can also be incentivized by raising the costs of the data transfer to other jurisdictions either through tedious procedures or through strict compliance obligations. A recent example would be the security review procedure for transfer of personal information laid down under the Chinese cybersecurity law. Other localization laws are narrow in scope. Think of South Korea’s Land Survey Act banning exporting local mapping data to foreign companies that do not operate domestic data servers. India’s National Data Sharing and Accessibility Policy requires all data collected using public funds to be stored within the borders of India.

    Balancing Data Protection and Data Localization in Trade

    Another important issue driving localization demands is privacy and protection of personal information. The inclusion of commitments prohibiting localisation mandates in treaties is promoted by industry groups [PDF] as a victory for user rights, security and openness of the Internet… but it’s not quite as simple as that. Some countries argue that limiting how personal data can be transferred across borders is one of the only practical ways they have to protect the privacy of their citizens, in the absence of a more comprehensive shared data protection regime between the countries concerned.

    Thus concerns about the lack of control over user data and its transfer, processing and storage in jurisdictions with autocratic governments, a weak rule of law, or surveillance programs, have led governments to recognise data protection as a legitimate reason to limit transfer of data. For example, without such exceptions, sensitive health information from Canada and Australia could be processed in jurisdictions with weaker privacy protections. The European Union also maintains that data protection and privacy are legitimate reasons to place limits cross-border transfer of data, and its Privacy Shield agreement with the United States is its attempt at doing exactly this.

    Not surprisingly, there has been strong pushback from the US and large tech firms on this stance. Last week, the Information Technology Industry Council (ITIC) a US-based technology group has alleged that several countries, including India, China, South Korea, Russia, Vietnam, Canada, Mexico and Indonesia have turned to discriminatory policies and forced localisation that unfairly disadvantage American companies. The group has submitted a report to the Trump Administration and is urging for an intervention from the Trump administration to remove barriers to trade.

    There is no agreement on where to draw the line between data protection based restrictions on data flows that are protectionist and against trade and liberalisation, and those that are necessary to guarantee the rights of citizens. Privacy experts have argued that data protection is qualitatively different from forced localization and the issue of data localization for data protection would disappear if nations implement stronger privacy laws or adopted baseline best practices. Nevertheless countries continue to pursue carving exemptions for data protection in trade agreements.

    Several regional trade agreements under discussion include provisions addressing the cross-border transfer of personal information. Texts and analysis of TTIP, TPP, TISA and NAFTA seems to suggest an emerging strategy on data localization linked to transfer of personal information. Participating nations commit to general obligations to not restrict data flows or to require localization of infrastructure, facilities or restriction on transfer of ICT goods and services. For the RCEP, which includes countries with strong national localization strategies or ambitions such as China and India, and countries like Australia and Japan that oppose localization, it is as yet unclear how data localization will be treated.

    A strategy to harmonize national approaches followed in the TPP which may see adoption in other trade agreements such as NAFTA and RCEP would be to create exceptions for countries to the general obligations against data localisations. Exceptions allowing restrictions have to based on “legitimate public policy concerns” and are expected to provide the flexibility to accommodate national approaches in regional agreements. Not including such exceptions could require certain countries to roll-back data protections guaranteed to citizens in order to allow cross-border transfer. Global trade bodies recognise the need for flexibility and the World Trade Organization provides such exceptions under Article XIV of its General Agreement on Trade in Services (GATS).

    Yet the problem with this is it exposes data protection rules to the possibility of trade complaints about whether these rules are legitimate and proportionate—and these complaints would be heard by a panel of trade lawyers, who have no particular expertise in privacy law or human rights. A lot depends on the implementation of restrictions crafted under these exceptions. When specifying exceptions it is important that governments lay down conditions to facilitate transfer of data where privacy concerns have been adequately addressed. Thinking through and being critical of effectiveness of de-identification measures or thresholds for meaningful informed consent will go a long way in understanding if restricting data to a jurisdiction is a long-term solution for protecting personal data.

    EFF’s Recommendation

    We believe that countries should consider other measures apart from data localization for strengthening data protection in trade agreements. While there is no global framework for data protection, there are regional initiatives such as the Asia Pacific Economic Cooperation (APEC) Privacy Principles and APEC’s Cross Border Privacy Rules (CBPR) system. Such mechanisms could be a starting point for harmonising national approaches and gaining consensus on data protection.

    The CBPR features principles and guidelines for the development of a system of voluntary cross-border transfer of personal information in the region. In addition to Canada, Japan, Mexico, and the US, nearly two dozen private companies are also participatory members in the CBPR framework. Earlier this year, South Korea became the fifth member and Singapore and the Philippines are expected to join in the near future. The incentives for integration of such a template will depend on how far countries can accommodate domestic strategies to be harmonious with global rules. By themselves, Australia, India, China, Japan and South Korea are large economies and their role in regional structures and ambitions will influence their role in trade negotiations.

    Since the APEC privacy principles do not impose obligations on its member organisations with respect to privacy, but merely confirm a baseline level of protection, Mexico has asked for more in the NAFTA negotiations which begin this week. It is pushing for a Privacy Shield style agreement that would require U.S. companies to abide by Mexico’s stronger data protection rules if they wish to gain access to the benefits of liberalized trade within the NAFTA region. The response from the United States remains to be seen, but we can expect some pushback against this suggestion.

    Calls to regulate data localization laws in trade agreements aren’t going to go away while the factors driving these laws remain, and weak cross-border data protection is one such factor. But data localization isn’t a comprehensive solution to this problem, as it doesn’t guarantee that data will be secure or adequately protect it against misuse. Pushing localization for short-term social, political and economic gains could ultimately harm users and innovators.

    Given the complex political and cultural contexts driving data localization, reconciliation of the multitude of interests and ideologies will not be easy. Ideally, the privacy and personal data of users would be protected through measures that support a free and open Internet, and that would not be vulnerable to being overturned by trade tribunals who place the free flow of data above the human rights of users. Threading this needle is a challenge in the best of conditions, but doing so under the closed, opaque, and lobbyist-dominated conditions of trade negotiations makes it even harder.


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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