Digital Trade Agreements Failing to Reflect Internet Community Input: UNCTAD

  • A hallmark of the new generation of trade agreements under negotiation, such as the North American Free Trade Agreement (NAFTA) and the Regional Comprehensive Economic Partnership (RCEP), is the inclusion of chapters on e-commerce or digital trade. But interest in using trade agreements to address issues such as data localization, disclosure of software source code, and platform safe harbors, isn’t restricted to these regional trade negotiations.

    The same issues have also been raised at the international level at bodies such as the World Trade Organization (WTO), the United Nations Conference on Trade and Development (UNCTAD), and the World Economic Forum (WEF). Recent reports from some of these bodies highlight some serious shortcomings in the way that these digital issues are being shoehorned into new trade agreements without adequate transparency and consultation.

    UNCTAD Information Economy Report 2017

    Last week UNCTAD released the 2017 edition of its Information Economy Report (PDF). The annual publication acknowledges that a growing number of countries are adopting disincentives or barriers to processing, storage and transfer of data, which are driving the push to address these barriers through trade agreements. It suggests that harmonization and interoperability of national data protection regimes could help to to find an appropriate balance between supporting processes that allow the transfer of data, on the one hand, and addressing concerns related to issues such as privacy and security on the other.

    But more significantly the report also criticizes the lack of dialogue between the trade and Internet communities on risks related to data privacy and security, and devotes an entire chapter to exploring the interfaces between trade and Internet governance policy making, including the differences in workings and expectations of the two communities. The chapter stresses the need for aligning trade processes with multi-stakeholder values such as transparency, openness, and inclusive peer-to-peer participation by any interested party on an equal-footing. It recommends a bottom-up agenda-setting and iterative multi-stage consultation processes to address Internet-related issues, such as those being proposed for the digital trade chapter of NAFTA. EFF’s Open Digital Trade Network and our Brussels Declaration on Trade and the Internet that call upon governments to make trade policymaking on Internet issues more transparent and accountable are explicitly referenced in the report.

    In contrast to the hard law-making approach that the U.S. Trade Representative is bringing to the NAFTA negotiations, the report draws upon a framework proposed by the World Economic Forum (WEF) to suggest how norms for e-commerce and the digital economy should be developed. The WEF paper outlines a three-pronged strategy:

    1. Rather than attempting to agree on binding trade rules, nations should come together to issue declarative statements of mutual interest, based on inputs from stakeholders at the national and global level. Currently efforts are underway to formulate principles and best practices for cooperation across several multilateral mechanisms including the G-7, G-20 and OECD. UNCTAD is put forward as a possible facilitator to help improve synergies amongst these efforts and serve as a platform for formulating soft law rules outside of the pressure of trade negotiations.
    2. Groups of experts from both the trade and Internet communities should be used to build consensus on key issues. Consensus building is seen as critical for reconciling the multi-stakeholder and traditional trade processes to create an approach that is open, transparent and inclusive at the levels of agenda setting, rules design and implementation, while preserving governments’ final decision making authority. One possible model for such expert groups would be based on the Global Commission on Internet Governance and the Global Commission on the Stability of Cyberspace (GCSC). In tandem with this “inner circle” of experts, a more broadly inclusive range of interested stakeholders could be engaged through online platforms and given opportunities to provide inputs into the work of the inner circle. The UNCTAD E-Commerce Week, a new UNCTAD Intergovernmental Group of Experts on E-Commerce and the Digital Economy, and the Internet Governance Forum (IGF) are recommended as potential avenues for engagement with this outer circle.
    3. There should also be long-term efforts to open up trade processes so they can benefit from being informed by a broader matrix of analysis and dialogue. Reforms allowing relevant stakeholders to track developments and contribute perspectives and experiences, could increase their buy-in and support for trade policies being developed through trade processes. (EFF has recommended such a set of reforms for U.S. trade policymaking.) The report also recommends an assessment on whether trade process or other mechanisms are more suitable for developing new rules on digital issues not covered under existing trade rules.

    All of these recommendations are derived from existing practices drawn from other sectors or in other trade negotiations on the digital economy. For example, the European Commission report on the Trade in Services Agreement (TISA) notes that consultations are an essential part of every trade negotiation, stating, “The interaction between international and local experts, NGOs, business, national government officials, EU officials and other stakeholders leads to a two-way exchange of information.”

    Although it doesn’t go as far as we would like, the Commission’s approach to the TISA negotiations does provide a stark contrast with those of the NAFTA negotiations. For example, there is a dedicated website which forms an essential part of the consultation process and serves as the main tool for sharing information and updates about the study with stakeholders. The website is used to share drafts of the inception and interim reports and newsletters. It also includes information and documents from civil society dialogues, stakeholder surveys, and summary reports of the TISA negotiation rounds. A dedicated email address exists where stakeholders can send their questions or feedback on the reports.

    Future of Multilateral Negotiations at the WTO

    The UNCTAD and WEF recommendations aren’t relevant only to regional and bilateral negotiations such as those in NAFTA and RCEP, or to plurilateral deals such as TISA, but also to the future of fully multilateral trade discussions at the WTO. In parallel to the release of the Information Economy Report and the first meeting of UNCTAD’s Intergovernmental Group of Experts which took place on October 4-6, Ministers of a select group of WTO member countries gathered in Morocco between 9-10 October to firm up the agenda for negotiations for the WTO’s upcoming Ministerial Conference in December in Buenos Aires, Argentina.

    The WTO’s biennial summit is the biggest multilateral consultation among nations regarding global trade and investment norms, and the meeting in December will set the discussion and norms for sectoral issues, at least for the next 2 years. Several countries including United States, Australia, Switzerland and Norway have submitted proposals to include global e-commerce rules. Other countries are opposing these proposals on different grounds, which has resulted in a stalemate at the WTO. WTO procedures mandate that any new resolution garner the unanimous support of member-countries before being adopted.

    The Morocco “mini-Ministerial” aims to provide political momentum on these long-standing issues and reconcile member nations at loggerheads with each other. The EU has tabled proposals in several areas including e-commerce and recently called upon WTO partners to plan for substantive ambitious outcomes. However other member states are neither as optimistic nor keen on expanding the the multilateral trade order. In a series of tweets on Tuesday, the Indian Commerce and Industry Minister Suresh Prabhu said: “Trying hard to ensure multilateral WTO remain intact, despite huge pressures. Having several bilaterals with all important countries”. India is of the view that WTO members need to first deal with the issues which were already under negotiation, before moving on to new ones and urged nations to “avoid further widening and perpetuation of the imbalance between developed and developing countries.”

    Around 300 civil society organisations from 150 nations have also raised concerns over the e-commerce liberalisation seemingly gaining priority over traditional issues such as food security. The letter (PDF) addressed to WTO members describes a push for “a dangerous and inappropriate new agenda under the disguising rubric of ‘e-commerce’, while there is no consensus to introduce this new issue during or since the last WTO Ministerial conference.” The letter argues that the WTO is not the proper forum to negotiate e-commerce issues which “have either already been discussed and resolved, or are currently being discussed, in other forums, most of which are more responsive and accountable to public interest concerns than the WTO.”

    Despite our opposition to the secretive trade agreements of the past, EFF isn’t against free trade. We would like to see future trade agreements that work for Internet users and innovators, as well as for traditional trade stakeholders. But as UNCTAD and the WEF recognize, expectations around the levels of transparency and public consultation that can be expected in trade negotiations have changed. This is especially so in relation to Internet-related rules, where prescriptions nominally about commerce and trade can affect citizens’ free speech and other fundamental individual rights. The future for trade negotiations whether they are pursued at bilateral, plurilateral, or multilateral venues lies in the adoption of more transparent, consultative practices. The WEF and UNCTAD recommendations are a welcome exploration of possible reforms to trade negotiation practices to make them fit for the 21st century.

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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