Stop SESTA: Section 230 is Not Broken



  • EFF opposes the Senate’s Stop Enabling Sex Trafficking Act (S. 1693) (“SESTA”), and its House counterpart the Allow States and Victims to Fight Online Sex Trafficking Act (H.R. 1865), because they would open up liability for Internet intermediaries—the ISPs, web hosting companies, websites, and social media platforms that enable users to share and access content online—by amending Section 230’s immunity for user-generated content (47 U.S.C. § 230). While both bills have the laudable goal of curbing sex trafficking, including of minor children, they would greatly weaken Section 230’s protections for online free speech and innovation.

    Proponents of SESTA and its House counterpart view Section 230 as a broken law that prevents victims of sex trafficking from seeking justice. But Section 230 is not broken. First, existing federal criminal law allows federal prosecutors to go after bad online platforms, like Backpage.com, that knowingly play a role in sex trafficking. Second, courts have allowed civil claims against online platforms—despite Section 230’s immunity—when a platform had a direct hand in creating the illegal user-generated content.

    Thus, before Congress fundamentally changes Section 230, lawmakers should ask whether these bills are necessary to begin with.

    Why Section 230 Matters

    Section 230 is the part of the Telecommunications Act of 1996 that provides broad immunity to Internet intermediaries from liability for the content that their users create or post (i.e., user-generated content or third-party content).

    Section 230 can be credited with creating today’s Internet—with its abundance of unique platforms and services that enable a vast array of user-generated content. Section 230 has provided the legal buffer online entrepreneurs need to experiment with news ways for users to connect online—and this is just as important for today’s popular platforms with billions of users as it is for startups.

    Congress’ rationale for crafting Section 230 is just as applicable today as when the law was passed in 1996: if Internet intermediaries are not largely shielded from liability for content their users create or post—particularly given their huge numbers of users—existing companies risk being prosecuted or sued out of existence, and potential new companies may not even enter the marketplace for fear of being prosecuted or sued out of existence (or because venture capitalists fear this).

    This massive legal exposure would dramatically change the Internet as we know it: it would not only thwart innovation in online platforms and services, but free speech as well. As companies fall or fail to be launched in the first place, the ability of all Internet users to speak online would be disrupted. For those companies that remain, they may act in ways that undermine the open Internet. They may act as gatekeepers by preventing whole accounts from being created in the first place and pre-screening content before it is even posted. Or they may over-censor already posted content, pursuant to very strict terms of service in order to avoid the possibility of any user-generated content on their platforms and services that could get them into criminal or civil hot water. Again, this would be a disaster for online free speech. The current proposals to gut Section 230 raise the exact same problems that Congress dealt with in 1996.

    By guarding online platforms from being held legally responsible for what thousands or millions or even billions of users might say online, Section 230 has protected online free speech and innovation for more than 20 years.

    But Congress did not create blanket immunity. Section 230 reflects a purposeful balance that permits Internet intermediaries to be on the hook for their users’ content in certain carefully considered circumstances, and the courts have expanded upon these rules.

    Section 230 Does Not Bar Federal Prosecutors From Targeting Criminal Online Platforms

    Section 230 has never provided immunity to Internet intermediaries for violations of federal criminal law—like the federal criminal sex trafficking statute (18 U.S.C. § 1591). In 2015, Congress passed the SAVE Act, which amended Section 1591 to expressly include “advertising” as a criminal action. Congress intended to go after websites that host ads knowing that such ads involve sex trafficking. If these companies violate federal criminal law, they can be criminally prosecuted in federal court alongside their users who are directly engaged in sex trafficking.

    In a parallel context, a federal judge in the Silk Road case correctly ruled that Section 230 did not provide immunity against federal prosecution to the operator of a website that hosted other people’s ads for illegal drugs.

    By contrast, Section 230 does provide immunity to Internet intermediaries from liability for user-generated content under state criminal law. Congress deliberately chose not to expose these companies to criminal prosecutions in 50 different states for content their users create or post. Congress fashioned this balance so that federal prosecutors could bring to justice culpable companies while still ensuring that free speech and innovation could thrive online.

    However, SESTA and its House counterpart would expose Internet intermediaries to liability under state criminal sex trafficking statutes. Although EFF understands the desire of state attorneys general to have more tools at their disposal to combat sex trafficking, such an amendment to Section 230 would upend the carefully crafted policy balance Congress embodied in Section 230.

    More fundamentally, it cannot be said that Section 230’s current approach to criminal law has failed. A Senate investigation earlier this year and a recent Washington Post article both uncovered information suggesting that Backpage.com not only knew that their users were posting sex trafficking ads to their website, but that the company also took affirmative steps to help those ads get posted. Additionally, it has been reported that a federal grand jury has been empaneled in Arizona to investigate Backpage.com. Congress should wait and see what comes of these developments before it exposes Internet intermediaries to additional criminal liability.

    Civil Litigants Are Not Always Without a Remedy Against Internet Intermediaries

    Section 230 provides immunity to Internet intermediaries from liability for user-generated content under civil law—whether federal or state civil law. Again, Congress made this deliberate policy choice to protect online free speech and innovation.

    Congress recognized that exposing companies to civil liability would put the Internet at risk even more than criminal liability because: 1) the standard of proof in criminal cases is “beyond a reasonable doubt,” whereas in civil cases it is merely “preponderance of the evidence,” making the likelihood higher that a company will lose a civil case; and 2) criminal prosecutors as agents of the government tend to exercise more restraint in filing charges, whereas civil litigants often exercise less restraint in suing other private parties, making the likelihood higher that a company will be sued in the first place for third-party content.

    However, Section 230’s immunity against civil claims is not absolute. The courts have interpreted this civil immunity as creating a presumption of civil immunity that plaintiffs can rebut if they have evidence that an Internet intermediary did not simply host illegal user-generated content, but also had a direct hand in creating the illegal content. In a seminal 2008 decision, the U.S. Court of Appeals for the Ninth Circuit inFair Housing Council v. Roommates.com held that a website that helped people find roommates violated fair housing laws by “inducing third parties to express illegal preferences.” The website had required users to answer profile questions related to personal characteristics that may not be used to discriminate in housing (e.g., gender, sexual orientation, and the presence of children in the home). Thus, the court held that the website lost Section 230 civil immunity because it was “directly involved with developing and enforcing a system that subjects subscribers to allegedly discriminatory housing practices.” Although EFF is concerned with some of the implications of the Roommates.com decision and its potential to chill online free speech and innovation, it is the law.

    Thus, even without new legislation, victims of sex trafficking may bring civil cases against websites or other Internet intermediaries under the federal civil cause of action (18 U.S.C. § 1595), and overcome Section 230 civil immunity if they can show that the websites had a direct hand in creating ads for illegal sex. As mentioned above, a Senate investigation and a Washington Post article both strongly indicate that Backpage.com would not enjoy Section 230 civil immunity today.

    SESTA and its House counterpart would expose Internet intermediaries to liability under federal and state civil sex trafficking laws. Removing Section 230’s rebuttable presumption of civil immunity would, as with the criminal amendments, disrupt the carefully crafted policy balance found in Section 230. Moreover, victims of sex trafficking can already bring civil suits against the pimps and “johns” who harmed them, as these cases against the direct perpetrators do not implicate Section 230.

    Therefore, the bills’ amendments to Section 230 are not necessary—because Section 230 is not broken. Rather, Section 230 reflects a delicate policy balance that allows the most egregious online platforms to bear responsibility along with their users for illegal content, while generally preserving immunity so that free speech and innovation can thrive online.

    By dramatically increasing the legal exposure of Internet intermediaries for user-generated content, the risk that these bills pose to the Internet as we know it is real. Visit our STOP SESTA campaign page and tell Congress to reject S. 1693 and H.R. 1865!

    https://www.eff.org/deeplinks/2017/09/stop-sesta-section-230-not-broken





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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