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Comment by Myrmornis | Hacker News Reader

I gather from stuff like the quote on Wikipedia pasted below that there is doubt about the protection from prosecution that canaries give you. But I'm finding that hard to believe. What about if it's literally a picture of a canary you remove, rather than any actual sentences, and you don't say anything about it? Or you change it to a cardinal (red) one day? Or you give a string of 1s and 0s with the understanding that the proportion of 1s should be interpreted as the probability that you've been subpoenad? Would the court's decision depend on the belief in the general population about the semantics of the page decorations?

  Bruce Schneier wrote in a blog post that "[p]ersonally,
  I have never believed [warrant canaries] would work. It
  relies on the fact that a prohibition against speaking
  doesn't prevent someone from not speaking. But courts
  generally aren't impressed by this sort of thing

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I'm not sure about the actual protection but your explanation sounds more like how a programmer thinks than how a law person thinks:

What matters, ultimately, is not just the thing itself but the context in which it is used and presented. If I announce that "picture present" means "no" and "picture removed" means "yes", the presence or removal of the picture still acts as a communication system and its use is likely considered a form of communication by the law.

However what makes canaries special is that mere removal or absence is ambiguous in that it can be unintentional. The question then is whether this is more akin to changing your response from "No" to "No comment" and whether this change itself when you have previously announced you will always answer "No" as long as it is truthful already indicates "Yes" (thus violating the gag order).

It's hard to swallow that the courts could force someone to lie.

They wouldn't force you to lie, they'd punish you for communicating something you've been ordered not to. 'You' didn't have to set up the canary in the first place.

Well...

It's really icky to punish someone for doing something that wasn't a crime at the time and place it was done. If you create a law that prohibits visiting a park at night, you shouldn't retroactively punish half the population for having visited a park at night. This stuff is UN human rights stuff, and often the norm in sensible justice systems.

Drawing on this, it's not currently illegal to publish a warrant canary. If it's not illegal, you can't be punished for it now. If you can't be punished for it now, in a sensible justice system, you can't be punished for it down the road either, as long as you stop doing it before it becomes illegal.

What they could argue is that by ceasing to publish the canary, you're committing the crime of communicating something you're not allowed to communicate. That, however, skirts dangerously close to forcing someone to lie.

> What they could argue is that by ceasing to publish the canary, you're committing the crime of communicating something you're not allowed to communicate. That, however, skirts dangerously close to forcing someone to lie.

This was my point, but the issue seems to me not about them forcing you to lie but rather about you setting up a system that you know will either force you to lie, or to break a court order by communicating something you were ordered not to. The only point of a warrant canary is to try to bypass the intention of a potential future court order.

> you setting up a system that you know will either force you to lie, or to break a court order by communicating something you were ordered not to.

Which is not illegal, and therefore cannot be punished. I wouldn't be surprised if they make warrant canaries illegal (they are already in Australia?) for this reason, and it sorta kinda makes sense, but it also sucks.

Edit: though I guess you could argue that "preparing to break a court order" is some sort of crime, but

1. It's in this case equivalent to making warrant canaries illegal, and

2. Laws that are punished only occasionally are the scariest thing.

"...skirts dangerously close to forcing someone to lie..."

Which opens a whole other can of worms. Telling a lie is not illegal. However the impact of that lie might result in loss to a third party - and that would need to be reconciled.

Depends on the person to whom the lie was told.

By establishing the canary, you are intentionally putting yourself in a position such that in the future you will be forced to lie or commit a crime.

That said, meta-censorship is pretty icky regardless.

This is called ex post facto law, and is in fact unconstitutional in the US (https://en.wikipedia.org/wiki/Ex_post_facto_law#United_State...). The interesting thing is that the whole forcing someone to lie thing could be used to create a legal catch-22 where if one tells the truth they are punished AND if they lie they are punished.IANAL, but it would seem to be a logical possibility.

Fine let's assume the actual transparency report is in and of itself a warrant canary. My hypothetical company releases transparency reports every month and stops as soon as I receive an NSL. A company who has not received an NSL may also choose to stop or never start in the first place. Where does this fall?

Exactly. Imagine if Reddit's transparency report included a fat canary. Something like:

The data for the following users (as of December 31 2015) has not been subpoenaed:

  /u/mike_pants
  /u/the_starship
  /u/SlimJones123
  /u/n3rdopolis
  /u/mrbabyman
  /u/GreedE
  ...

Individual users could determine if they've been the subject of a subpoena and I suspect that kind of cleverness wouldn't impress a judge.

Take it a step further and you could say "since date 20xx-xx-xx until now" for each user and really piss off a judge with your cleverness. After all, youre not saying when a user's info was subpoenaed, but the range of dates when it wasnt.

They don't have to force you to lie, they can perhaps compel you to cooperate with law enforcement by either handing out the signing keys or by signing a message prepared by law enforcement.

Law enforcement doesn't have to tell the truth all the time, and deception is constantly used through out the legal system.

Then as a similar tactic, include a sentence at the bottom like "this report was written entirely by employees of X Corp, without the influence of any government entity". Unless the law can then force you to take on the government agent, that should make your first problem go away, right?

The SEC doesn't mind if you cancel a planned stock sale as an insider - 'no insider trading without a trade'. It's an entirely plausible that there's "no speaking about a gag order without speaking".

Courts (especially in the US) have been known to equate all kinds of things with speech, so it's not unthinkable to equate the symbolic act of NOT doing something with a form of speech. Not standing for the the national anthem or Pledge of Allegiance, for example. So in THEORY a court could rule that the act of not doing something you might be expected to do, such as include a warrant canary, is still a form of speech, and in doing so you are violating your gag order.

Still, all theoretical and purely speculation, because as far as I know this has never been tested in court.

Part of the Apple all writs defense was the government can't force you to speak as it is a violation of the first amendment.

I do agree with the quotation though. I have a hard time believing government wouldn't somehow figure out a secret way to violate your first amendment such that you have no legal recourse.

> The SEC doesn't mind if you cancel a planned stock sale as an insider

Actually, they do tend to mind, and they will scrutinize you much more intensely if you engage in insider not-trading... it's just there's not much they can do about the non-sale in and of itself.

It's the whole positive and negative proof thing again. But the way it was dealt with in Australia is that you cannot even set up a canary (it's against the law to make any statement about whether or not a journalist warrant exists -- regardless of whether or not you told the truth). Is that a bit messed up? Yes. Do we have even more messed up laws than that? Definitely, the most chilling of which is the anti-whistleblowing laws (journalists and readers can be held accountable for disclosures of ASIO [Australian NSA] internal workings).

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