Europe's Courts Decide: Does U.S. Spying Violate Europe's Privacy?

  • In a long-awaited decision on whether and how Europeans’ private data can be protected from the roving eyes of the NSA, the Irish Commercial High Court this morning declared that “standard contractual clauses” —the procedure that tech companies like Facebook use to try to satisfy European privacy laws—should be reviewed by the European Union’s top court, the Court of Justice (CJEU).

    The decision hands the court a key question that could affect millions of users and the business practices of Facebook and other tech giants: should tech companies be allowed to send the personal data of European customers across the Atlantic if they can’t guarantee that, once in U.S. data centers, the information won’t be vacuumed up by NSA surveillance?

    The decision follows a request for guidance by the Irish Data Protection Commissioner (DPC), who began to ask questions about the procedure after the collapse of the U.S/E.U. Privacy Safe Harbor rules, another method for legally transferring personal data that was struck down by the CJEU in October 2015. The case stems from complaints brought by Max Schrems, a tireless Austrian privacy activist and EFF Pioneer Award winner, who has been pursuing U.S. companies for violations of EU privacy law since 2011.

    After the Safe Harbor fell, Internet companies, the E.U. Commission and the U.S. Department of Commerce scrambled to renegotiate a new “Privacy Shield,” consisting of a new set of privacy promises from the private and public sector. However, this negotiation mostly ignored that the CJEU’s rejection of the Safe Harbor centered not only on corporate misuse of private data but also its vulnerability to U.S. surveillance programs—particularly PRISM, which collected data directly from companies like Facebook. Apart from a flimsy assurance from the Director of National Intelligence that U.S. surveillance was “reasonable,” the Privacy Shield agreement included no direct reforms of American spying practice.

    Last year, the Irish DPC asked the obvious follow-up question to all this activity (and one that we’ve been asking since the original CJEU decision): if the CJEU’s problems with U.S. mass surveillance program were not addressed by Privacy Shield, is transfer of personal data from the Europe to the United States still unlawful?

    More specifically, Facebook, whose European branch is based in Ireland, has been using “standard contractual clauses” (or “model clauses”) to try to guarantee the privacy of the data it transfers to the United States. These clauses are an alternative to the Safe Harbor/Privacy Shield, and weren’t part of the original CJEU decision.

    The DPC asked the Irish court to reconsider the problem with standard contractual clauses in mind, and asked that the court refer its questions to CJEU so that the decision could made on a Europe-wide basis. (The DPC cannot refer matters to the CJEU on its own.)

    Unlike an earlier Schrems case, which was largely ignored by the establishment as it wound through the Irish courts, this new court action attracted the immediate attention of Facebook and the U.S. government.

    Facebook, as with other Internet companies relying on the free flow of personal data out of Europe, has a strong incentive to deny that the U.S. government’s spying policies affects its business. The U.S. government meanwhile has always insisted the European Court of Justice made its original Safe Harbor judgement based on a misunderstanding of its domestic surveillance practices—and anyway, they added, they’ve improved a lot since then.

    The decision confirms the suspicion of Ireland’s privacy regulators (and EFF) that Facebook’s business practices are not the only matters under the microscope in Europe: the EU courts also care about the American mass surveillance of ordinary innocent Europeans.

    The judge in the matter, Justice Caroline Costello, said there were “well-founded concerns” that the contractual clauses used by Facebook don’t provide the kind of privacy safeguards required under European law. In an 153 page judgement (summary), she concludes that:

    “The [Data Protection] Directive defines processing of personal data as including any operation or set of operations which is performed upon personal data such as collection… or otherwise making available the data. On the basis of this definition and the evidence in relation to the operation of the PRISM and Upstream programmes authorised under Section 702 of FISA, it is clear that there is mass indiscriminate processing of data by the United States government agencies.”

    Current United States Surveillance Reforms Are Not Enough

    In particular, the court rejected the U.S. government’s claim that it had sufficiently cleaned up its act since the CJEU’s last decision. To show its change of heart, the U.S. government cited statements that the intelligence services will no longer collect data “about” a target, and the recent success of Wikimedia to obtain its day in court to challenge effect of surveillance on its own users.

    These steps are certainly improvements to the overall state of mass surveillance and its oversight, but certainly don’t reach the standard required by Europe’s Court of Justice and the European Charter of Human Rights.

    First, while the NSA has stopped searching through the huge amount of data it collects for information “about” a target, there is no indication or evidence that this is reducing the amount of data that is subject to the NSA’s collection and searches. Based on public information, stopping “about” collection does little to limit the overall scope of surveillance under Section 702, which annually results in the collection of billions of communications from hundreds of thousands of people around the globe.

    Second, while Wikimedia, and before that EFF’s clients in Jewel v. NSA, have passed an initial test of standing, in the context of a basic motion to dismiss, courts presiding over these civil cases have yet to rule on the legality of surveillance. Meanwhile the U.S. government continues to contest the plaintiffs’ standing to litigate on the merits.

    Third, these statements apply to “Upstream” collection; not the PRISM/“Downstream” surveillance program in which Facebook is most directly implicated.

    The court also rejected the new systems created by the Privacy Shield negotiations, including the Judicial Redress Act, and the creation of a privacy ombudsperson. Regarding the ombudsperson, she writes that there is “a well-founded argument that the Ombudsman mechanism does not respect the essence of a fundamental right. It does not afford EU citizens fundamental protection. The Ombudsperson is not a judge and . . . critically, her decisions are not subject to judicial review.”

    Justice Costello concludes:

    In my opinion, despite the number of possible causes of action, it cannot be said that US law provides the right of every person to a judicial remedy for any breach of his data privacy by its intelligence agencies. On the contrary, the individual remedies are few and far between and certainly not complete or comprehensive.

    Fixing Surveillance

    For the changes that the European courts want to see, we need serious statutory reform of surveillance in the United States, in its transparency, the breadth of its warrants, and the matter of individual redress. That’s something that the U.S. politicians about to consider the renewal of Section 702 should bear in mind.

    If the CJEU holds that U.S. surveillance violates European privacy laws, it will reject standard clauses, the new Privacy Shield, and any other method companies have used to shuttle private data from Europe to America. American businesses will be under a data embargo—until Congress fixes its spying mess.

    Take Action, and tell Congress to pull the plug on Internet spying programs.

    Related Cases: Jewel v. NSA

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 and clicked on a product category, you would be first diverted to and then redirected to Although imperceptible to the user, this detour was enough to persuade the browser that 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.


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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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