Verizon Asks the Federal Communications Commission to Prohibit States from Protecting User Privacy

  • After lobbying Congress to repeal consumer privacy protections over ISPs, Verizon wants the Federal Communications Commission (FCC) to do it a favor and preempt states from restoring their privacy rights. While Congress repealed the previous FCC’s privacy rule, it left the underlying Section 222 intact. As a result, dozens of state bills were then introduced to restore broadband privacy, mirroring Section 222 of the Communications Act.

    Verizon’s two-pronged attack on privacy protections for Internet users would require the FCC to not only abandon federal privacy protections (which is part of their Title II common carrier obligations), but to also prohibit states from protecting the privacy of their residents.

    The states, however, have a vital role to play in protecting Internet subscribers, particularly given the rollback of federal protections. It would be unwise for the FCC to attempt to block such protections at Verizon’s behest, and it would be on shaky legal footing if it tried to do so.

    Legally, Congress has the power to override state laws that interfere with federal regulation, subject to important limits set forth in the Constitution. This power is called “preemption” – Congress can “preempt” state law.

    Because preemption interferes with states’ ability to govern conduct within their borders, courts do not simply assume that all action by federal regulators can overturn state laws. Contrary to Verizon’s claims that the FCC has clear authority to preempt on privacy, it would be legally unwise and potentially unlawful for the FCC to preempt the states.

    Nothing in the Communications Act Prohibits States From Passing Their Own Privacy Laws that Go Beyond Federal Protections

    The Communications Act does not give the FCC the express power to bar states from protecting the privacy of Internet users. The only provision in the Act that bars states from any kind of conduct with regard to privacy is Section 222, which provides that states cannot undermine federal privacy protections, but may go further than federal law requires in protecting privacy so long as it compliments the federal law.

    Even the House author of the broadband privacy repeal, Congresswoman Marsha Blackburn, saw that no express statutory text exists to preempt state privacy laws. That is why she included the following language in her Browser Act legislation that seeks to impose privacy rules on ISPs and a range of Internet companies.

    No State or political subdivision of a State shall, with respect to a provider of a covered service subject to this Act, adopt, maintain, enforce, or impose or continue in effect any law, rule, regulation, duty, requirement, standard, or other provision having the force and effect of law relating to or with respect to the privacy of user information.

    That legislation has not been passed into law, meaning that Congress has not preempted the ability of states to protect online privacy.

    Absent any clear preemption of state power, Verizon resorts to a series of unavailing arguments that the power is implicitly granted to the FCC by other provisions of law (Section 706, 303, 153, 230, and the Congressional Review Act repeal law). We address each in turn.

    The Vague and Open-Ended Language of Section 706 Does Not Contain a Hidden Authority to Override State Laws

    Section 706 states that the FCC should address barriers to broadband deployment and competition. The problem with relying on this vague and open-ended provision for substantial authority is that Congress did not explain what it meant, and courts have struggled to articulate a principled outer bound for this power. Proponents of this theory argue that the FCC can take any action it wants, override any state law, if it concludes such an action will promote broadband deployment. If Congress ever grants an agency such power, one hopes it will at least be clear that it is doing so, and not use vague language of the kind in Section 706, which made it unclear it was granting the FCC any authority to do anything, rather than urging it to use its existing powers for a particular goal.

    Ironically, one very important FCC official thought Section 706 conferred no power to the FCC to block state laws. His name is Ajit Pai, the Current FCC Chairman.

    “I very much doubt that section 706 gives the Commission the authority to preempt any state laws, even those governing private actors.”

    -FCC Commissioner Pai in his 2015 dissent to the FCC’s effort to preempt state laws banning municipal broadband

    But let’s not just take Chairman Pai’s word for it. Even under a very aggressive reading of Section 706’s grant of authority, the FCC would have to prove that protecting user privacy is a barrier to competition and deployment and nothing indicates that is remotely true. In fact, a number of ISPs have explicitly told the FCC they had no new barriers to deployment or investment as common carriers subject to privacy rules. In essence, Verizon would need the FCC to make some unsubstantiated assumptions about privacy protections despite the Department of Commerce, Federal Trade Commission, and the FCC itself having found that privacy protections appear to improve broadband adoption as more sensitive information is passed online.

    Title I’s Lack of Statutory Text Cuts Against Preemption

    Title I is the alternative “classification” of broadband Internet service, and dominant ISPs like Verizon prefer it to Title II because they have successfully gutted it via a series of court challenges.

    Title I was a poor basis for the FCC’s authority because of the near-complete absence of statutory text on privacy, non-discrimination, and competition. That in turn means the FCC cannot legally enforce network neutrality, privacy, and other policies that would help competitive entry. However, while this silence on privacy aided Verizon when it sought to hamstring the FCC, it undermines its current argument for wide-reaching preemption powers.

    Because the statute does not govern privacy or expressly bar states from doing so, it cannot preempt state laws unless those laws interfere with federal regulation of interstate commerce. Protecting user privacy however is an intrastate activity (meaning it does not have to involve crossing borders) and states have passed numerous privacy laws historically that compliment federal law.

    For example, both Nevada and Minnesota have ISP privacy laws on the books today that Verizon is asking the FCC to strike down. California has the California Email Communications Privacy Act (Cal ECPA), the Student Online Personal Information Protection Act (SOPIPA), and California’s state constitution provides an affirmative right to privacy that has resulted in Comcast paying fines when it unlawfully disclosed customers’ personal information. These state laws and numerous others that impact ISPs would be impacted by Verizon’s request.

    Statements of Policy are Not Authorizations Granted By Congress

    The Communications Act includes policy statements favoring less regulation, rather than more, but a Federal appeals court has told us that policy statements do not amount to a legal grant of authority. For example, when the FCC attempted to uphold Network Neutrality under Title I in the past, the D.C. Circuit argued the FCC lacked the legal power to do so, rejecting the theory that policy statements confer statutory powers.

    Not a Single Court Case Exists To Sustain the Argument That the Congressional Review Act Preempts State Law

    The purpose of the Congressional Review Act (CRA) was to prohibit federal agencies from interpreting federal laws in a specific manner while placing a block on “substantially similar” regulations by those agencies. That has a strong impact on how federal law is applied, but only to the extent federal enforcers are allowed to apply them. It is with some irony that Verizon’s association, CTIA, has argued at the state level that the CRA has done nothing, yet at the federal level it is being argued that it is a massive and powerful block against state privacy laws.

    The reach of the CRA in particular has not been litigated because only one time prior to 2017 has the CRA even been used. However, the traditional legal standards governing preemption still apply, and nowhere in the CRA law does it have express statutory language preempting any state laws. EFF has strong doubts that the CRA, with its mechanism of restricting federal agencies, would grant those same federal agencies new powers to block states from acting in their own capacity.

    FCC Authority Over the Airwaves Also Does Not Directly Preempt Privacy Law

    The general authority of the FCC to regulate the deployment of wireless networks and licenses under Section 303 (also referred to as Title III authority) does grant the FCC the power to preempt states, but that preemption authority has its limits. For example, the FCC can block localities when they try to regulate interference or technical standards, but they cannot preempt states from regulating what is displayed on your bill from the wireless company. The FCC is also the sole entity that can decide whether a particular frequency is used for radio, television, or mobile broadband.

    It is not clear that the FCC can reach so far under its Title III authority to block states that want to regulate business practices that are unrelated to the underlying service being offered. The practice of monetizing the personal information of users with third parties is explicitly a business practice and wholly unnecessary to the provisioning of wireless broadband service. You do not need to monetize someone’s web browsing history in order to provide them a wireless network function, particularly given that Americans already pay substantial subscription fees for that service. It is also worth noting that the cellular industry has long lived under privacy rules that were intended to also apply to mobile broadband until Congress intervened.

    The FCC Should Reject Verizon’s Request to Overreach on its Legal Authority

    For all of the complaints lobbed at the FCC overreaching in its efforts to address the ISP market, it should not be lost on the Commission that Verizon is asking it to overreach on its behalf. The FCC should reject the request outright and not cut ISPs’ state lobbyists a break by unlawfully stepping in on state power. Not only would such a move be ill advised legally, but it would actively harm the privacy rights of all Americans and frustrate their right to seek a response from their locally elected state legislatures.

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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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