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Comment by jakobdabo | Hacker News Reader

Current warrant canaries are useless, it's a one time fuse. We need new, better, recurring (i.e. monthly) warrant canaries of different types (common canaries, individual canaries for each user). I want something like this everywhere:

    Jan 2016 - we haven't received any NSL

    Feb 2016 - we haven't received any NSL concerning your account

    Mar 2016 - we haven't received any NSL

    Apr 2016 - 

    Jun 2016 - we haven't received any NSL

View on HN

The rsync.net warrant canary has been issued monthly, with news headlines, for over ten years now.[1][2]

We split it for each location - SanDiego/Denver/Zurich/HongKong. Further, the individual location canaries can be retrieved from the actual storage array itself - that is, you can just fetch it via sftp/scp/rsync/whatever from (whatever system your account is on).

Finally, our canary is machine readable/parseable and nicely formatted. So much so that the maintainer of "Canary Watch" has told me that he wishes all warrant canaries followed our original format.

Oh By[3] will have a similar canary soon, modeled exactly after the rsync.net warrant canary.

[1] https://www.rsync.net/resources/notices/canary.txt

[2] http://blog.kozubik.com/john_kozubik/2010/08/the-warrant-can...

[3] https://0x.co

Can you comment on if you believe these to be actually effective? I don't see how when the USG says that you cannot divulge that you've received any type of NSL, they can easily say you must continue to act like you have in the past.

I just don't see a court or a judge upholding a "cute" or "technical" workaround for something like this. Haven't there been rulings in the past where these aren't valid, ie just like the article above once you do get NSL's etc you must take them down or be at risk of non compilance?

"Can you comment on if you believe these to be actually effective? I don't see how when the USG says that you cannot divulge that you've received any type of NSL, they can easily say you must continue to act like you have in the past."

The entire basis of the warrant canary is that it's not simply asking me to stop doing something, but rather, a judge would have to order me to make false public statements. That's a tough thing to imagine - certainly on any continued basis.

Even in that situation, how will they force a swiss national to update the swiss location ? There's no jurisdiction there.

I don't see it as a technical workaround at all - it is completely non-technical. Can the government compel my speech ? Can the government compel me to make false statements ?

> Can the government compel my speech ? Can the government compel me to make false statements ?

These are interesting questions, but I'm not at all sure the answer is not 'yes' to both of them, under the right circumstances.

The Fifth Amendment would not seem to imply (there's no criminal proceeding, and not necessarily any risk of self-incrimination) and the First Amendment, while applicable, would not necessarily prevent such a thing, in my estimation, if the circumstances were (in the government's estimation) sufficiently dire.

Alternatively, in some cases the USG could simply seize the domain name and/or server and serve up any content they wanted. See, e.g., Playpen. http://arstechnica.com/tech-policy/2016/01/after-fbi-briefly... Though presumably they could not do this if the site or service operator were not also implicated in some form of illegal activity.

> These are interesting questions, but I'm not at all sure the answer is not 'yes' to both of them, under the right circumstances.

That may be true, but it would remove any moral ambiguity for me and make it easy for me to stick to my principle. If a judge orders me to make a false public statement, I'll disobey, and accept the consequences. No further justification is needed.

Freedom of speech entails the freedom to speak only your mind. No one has a valid claim to compel your speech.

What sufficiently dire circumstance can there be where a government would have the right to compel speech?

I think the 13th amendment would come into play here as well.

> What sufficiently dire circumstance can there be where a government would have the right to compel speech?

"national security"

At least in the US, there are certainly circumstances where the government can compel speech, though in most cases they can't. There is a lot of case law on the subject. It's mostly in the commercial realm (think cigarette labels) but not entirely (think Jehovah's Witness school children who don't want to salute the flag). I'm not aware of a compelled speech case balancing national security interests against first amendment interests as this would be.

Pardon? No one, Jehovah's Witness schoolchildren or otherwise, can be legally compelled to say the pledge of allegiance, stand for the national anthem, or salute the flag. If you know of an instance of this occurring the ACLU would like to hear from you. Or have the rules on this changed when I wasn't looking?

You're right on the law as it stands today, but the current law exists precisely because of a case about Jehovah's Witnesses being compelled to salute the flag in school.

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/compell...

Can the government compel me to make false statements ?

In what scenario would the government need to compel you to make false statements?

The law is already that if you receive a NSL, then you are not allowed to divulge that you've received one. If you do, then you may be prosecuted for breaking the law.

In the scenario involving warrant canaries, the only difference between just outright saying you've received an NSL vs removing the canary is the reliance on some 'technical workaround' where the removal of information is not considered speech and/or doesn't divulge the information.

The judge is not going to tell you that you have to lie to keep the information up. But they may tell you that if you break the law, by divulging (through whatever means) that you have received an NSL, that you will receive the appropriate punishment.

The way I understand this, the canary will not be removed, it will just stop being updated. All it says is that, as of the date of the canary, no NSLs have been served. If you know the organization posts a new one monthly and you see it skipped a month, well you draw your own conclusions.

> well you draw your own conclusions.

Yes, that's the point: If someone tells you not to provide the information needed to draw those conclusions, there may be consequences for providing that information.

That's like me telling you that you can't make this post that you've already made. I can tell you not to make any further posts, but this one already exists.

No, it's like telling me that I need to continue making posts, or I will be fined. This may not be pleasant, but it's certainly something that the government can do.

It's pretty well established that they're legally allowed to prevent me from telling people that I am in a certain state. It's not a stretch that prearranged signals fall under that.

> It's pretty well established that they're legally allowed to prevent me from conveying a certain state -- ie, that I have received an NSL.

By compelling you to lie? When and where was that "pretty well established"?

By compelling you to avoid saying something. If you have a prearranged signal, you don't get to say "I'm just keeping my silence" any more: You are triggering a signal.

As far as I'm aware, this hasn't been tested in court. However, given that courts have been pretty silent on the idea of secret laws and compulsory silences, if it did get there, I'd be shocked that courts didn't rule this way.

If I already started a warrant canary, the only way you can compel that to not work is to compel me to continue posting. But you can only do that after right now, so you cannot possibly redact the canary itself. And you could only compel me to keep posting if you'd already served a warrant.

Well, as far as _we_ know this hasn't been tested. After all, it is a _secret_ court! That's the whole problem!

Maybe that's what happened here. That would be highly dismaying.

You have put yourself in a situation where you need to make false statements in order to comply with the law. If you create a deathtrap where you control a deadmans switch that prevents it from killing me, that doesn't absolve you of murder simply because the cause of my death is inaction rather than action.

Good thing he isn't murdering anyone then.

I think everyone agrees that not murdering people is a good thing, yes.

The whole point of warrant canaries is that while a judge can compel you to not say something, compelling speech is a much higher burden.

That's a great way to end up in prison. That said, civil disobedience has been used in the past to great effect.

  That's a great way to end up in prison.

It's like you're talking about an oppressive regime, but no, it's the USA. The land of opportunity, independence and above all, freedom. /s

>That's a great way to end up in prison

easy there, cowboy, this isn't East Germany just yet. I think American authorities can tell the difference between what they do and the Stasi.

As in, I actually, literally think they can tell the difference. Nobody will be ending up in prison for posting the above. Seriously. Show me a judge who'll do that.

You don't get a 4-year philosophy degree before getting a JD in American law, and structurally answer to a constitution literally containing the words "Congress shall make no law ...abridging the freedom of speech, or of the press" which is the first amendment, and which has been judged and interpreted very carefully by 9 independent justices upholding Freedom for 220 years, while sending people to prison for publishing

" Apr 2016 - "

Not happening. Not in 2016, and not in 2020. People need some perspective here.

EDIT: getting a lot of downvotes. Show me anyone who is in prison for publishing " Apr 2016 - " or any other similar warrant canary. You people need to stop throwing around "a great way to end up in prison" like that.

I'm not defending the status quo, but the suggestion that anybody is going to prison for posting a warrant canary is too much, sorry.

It diminishes the conversation and criticism around the actual status quo.

Depending on the intelligence and compassion of a judge is a great strategy. I'd bet that it works >50% of the time. But ask the legal counsel at a publicly traded company whether it's worth the gamble, and you'll get the same advice that the downvoters in here would give you, if they weren't in such a hurry.

You're right, no one is going to prison. However, a federal court case starts at 1.5 million to defend. Not many people have that in the bank. They can make you miserable for years. This has played a role in at least one person's suicide.

Getting on the bad side of the feds is pretty brutal.

I'd like to see a federal court case over publishing "Apr 2016 - " in a context that meant it's a canary. Go ahead and publish it. No one will sue you. Nobody will throw you in prison. Nobody will show up in black cars and take you to an interrogation. Nobody will put a bullet in your head. These questions about warrant canaries have been answered by judges, and not in the way that either I quoted or that you clarified.

I welcome any links you have that show otherwise.

I think with the claims you are making the onus is on you that one could get away with this.

>I think with the claims you are making the onus is on you that one could get away with this.

Fine. Here is the onus on me to show this:

“Warrant canaries have never been tested in court, but no case law suggests that they are in any way illegal,” says Nate Cardozo of the Electronic Frontier Foundation. “In fact, existing law suggests that if a court were to examine a prohibition on warrant canaries, it would likely conclude that any such prohibition would run afoul of the First Amendment, even in the case of NSL and FISA requests.”

Source: https://gigaom.com/2014/10/10/are-warrant-canaries-legal-twi...

Now the onus is on anyone who disagrees with my referenced link, to show otherwise. Personally, I am fine with following the legal reading and guidance of the Electronic Frontier Foundation, and you should be too.

The Warrant Canary article Wikipedia says, summarizing its three references: "Warrant canaries have been found to be legal by the United States Justice Department, so long as they are passive in their notifications."

Please link to any court cases to the contrary.

"The defendant merely published the string 'Apr 2016 -'" is what the defense's pretrial motion will say. It's not what the prosecution will say.

Two things,

1, you keep attempting to make my argument a straw man escalating the emotional impact of the consequences. First it's prison, now it's a bullet in the head. No one is claiming physical violence by the government other than you.

2, It's impossible to provide. Any case that lost would be secret due to national security reasons. You assert that this hasn't happened. Fine, believe what you wish. I assert that we don't know if it has happened or not. Because, again, we'd only know if the defendant "won".

I don't know how it suddenly became "your argument" the "first it's prison" isn't a straw man I introduced - I literally replied to someone who wrote:

>That's a great way to end up in prison

And I asked them to have a bit of perspective and not go off the deep end. You replied saying "However, a federal court case starts at 1.5 million to defend. Not many people have that in the bank. They can make you miserable for years. This has played a role in at least one person's suicide." I disagree that that is an outcome that will happen from ceasing to publish a warrant canary.

Nobody is going to do that over someone publishing 'Apr 2016 -'. Period.

And no, it's not impossible to provide evidence of this happening. Snowden leaked the secret program of surveilling hundreds of millions of Americans. You think someone couldn't leak a blog post about getting sued in secret court for publishing a 'Apr 2016 -' warrant canary? Really?

Let's have some perspective here.

Ah, but I used Aaron Swartz as a concrete example, for emotional impact. Hemingway would be another good example. Where as you are asserting full conspiracy nut with a bullet in the head.

I get it, you're an absence of evidence is evidence of absence guy. That's fine. We're prohibited from actually going and looking, so i think there's no way to tell one way or the other.

I don't think you can assign zero probability to prosecution for "April 2016 -". The whole weev debacle shows there can be a perfect storm of a bad person using something that's not legally rock solid that establishes case law. Apple can afford 1.5 million. Random startup by an ex drug dealer can't. And thus we get new case law.

Anyway. It has been fun to think about.

edit

I know it's bad form to talk about downvotes. logicallee has good points, i happen to disagree. Don't fall into the trap of downvoting them because you viscerally disagree with their opinion.

> I know it's bad form to talk about downvotes. logicallee has good points, i happen to disagree. Don't fall into the trap of downvoting them because you viscerally disagree with their opinion.

Seriously, of all the downvote abuse I've seen on HN, I think this is the worst. It's because of stuff like this that I think downvoting should be abolished. Stuff that breaks the rules should be flagged, and false flaggers should lose the privilege, and everything else should stand or fall on its own merit, according to the reader's judgment.

I miss the old (old) Slashdot meta-moderation system. If someone moderated a comment "Troll" merely because they disagreed with it, a meta-moderator (chosen at random from accounts with good karma) could fix it, anonymously. And if an account abused moderation, they could simply lose the privilege. And, of course, participants in a conversation couldn't moderate (still the case, I think). I still don't understand why Slashdot dumped that system, because it's the best I've ever seen anywhere on the Internet.

Can you put your money where your mouth is ? Like, can you put an Ethereum "contract" or something that says you bet $5k or more that nobody in the US in the next 5 years will be charged for using a warrant canary ? Suppose there were a way to contract that, would you bet that way ?

yeah I'd bet that way. Go ahead and note down my email somewhere, if in the next five years anybody is charged in the United States for publishing "we haven't been served any secret court orders" (or similar), or for removing that text - which is the two parts of how a warrant canary works - then you can email me and I'll paypal you a token payment.

I believe the receipt of an NSL prohibits future announcements like that.

I've always wondered if there is a side-channel that could be used instead of a warrant canary. More specifically, my understanding is that witnesses have Miranda Rights. Therefore, couldn't a company promulgate a process whereby they'll publicly solicit bids for legal counsel should they receive a NSL? If they start asking for bids, you can assume they've received a NSL. If not, then no NSL has been received.

Any lawyers in the house?

* Edited slightly for clarity.

I'm not a lawyer, but I think you almost definitely can't do that. The law is not an algorithm, at some point a human judge is going to decide if you've broken it. If the law says "you can't tell anyone" and you tell someone, you've broken the law. It doesn't matter if you told someone through the medium of a press release, or a predefined "unrelated (wink)" process.

Well, I know if you're charged, you have a right to be represented by counsel of your choice under the 6th Amendment.

https://en.wikipedia.org/wiki/Assistance_of_Counsel_Clause#C...

I wonder if that extends to witnesses not charged with a crime in some way. Or can you be denied counsel of your choice under questioning?!

I don't know, but even if you retain that right, it seems almost obvious that you don't have the right to publicly bid for counsel. Presumably the gag order would extend to any lawyer you contact.

Well, if the counsel of your choice was predefined as the one that bid the lowest in an open auction, then why would you lose that right? Could the court further restrict that right down to the specific lawyer they want representing you?

I do agree that the gag order would extend to any lawyer you contacted after the public bidding process concluded.

Why would you get to keep a right you just made up for yourself? If your random corporate process clashes with the law, the law wins. You still retain your constitutional right to counsel, you just need to contact prospective lawyers through private channels, even if that procedure conflicts with the bylaws of your board of directors.

There is no clever loophole here, it's a very simple order. The law says "no [recipient] shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section." https://www.law.cornell.edu/uscode/text/18/2709

Here the definition of "disclose" is "whatever convoluted process you can think of".

Reading further, it does say you can talk to an attorney, but that doesn't mean you can make a Craigslist post asking for lawyers with experience in the Patriot Act.

I don't necessarily agree with your reasoning; however, it looks like one's right to counsel is restricted if one is not charged with a crime:

https://supreme.justia.com/cases/federal/us/352/330/ (1957)

Further, it seems that Miranda only applies to custodial interrogations.

https://supreme.justia.com/cases/federal/us/384/436/ (1966)

I do think that if one is charged or restrained that the process might work. Of course, that's a pretty big escalation!

Why would it work? You think if you told the judge "nothing I can do, it says right here in my employee handbook that I'm not allowed to seek legal counsel without a public bidding period" they would say "wow, you really outsmarted us this time, nice job"? If part of your job involves breaking the law, then the law compels you to not do your job.

It seems like you're trying to hack in a domain that can't really be hacked, because it's not even very well defined. The spirit of the law is clear, I can't see any reason a judge would come down on your side of this. Prohibiting a bidding process does not restrict any of your rights.

I have no idea if it would work. As you state, it isn't very well-defined. I imagine it would eventually depend on a clarification of the phrase "your choice."

burning karma as breadcrumbs to a fantastic idea.

Not a lawyer, but according to Wikipedia, Ladar Levison ran into issues surrounding lawyer acquisition during the Lavabit case:

> Afterwards, Levison wrote that after being contacted by the FBI, he was subpoenaed to appear in federal court, and was forced to appear without legal representation because it was served on such short notice; in addition, as a third party, he had no right to representation, and was not allowed to ask anyone who was not an attorney to help find him one.

https://en.wikipedia.org/wiki/Lavabit

What if you told everyone that you would probably retain a specific lawyer if you were served a warrant such as this. If your company retains that specific council and makes a post on your website I don't see how that can be misconstrued as a warrant canary.

The law says you can't disclose that you received a letter, and in this context making a post on your website would clearly be a disclosure. You would be required to simply hire the lawyer without making an announcement.

How about company Y declares they may hire law firm X if they receive a NSL and law firm X subsequently releases a press release stating that they've been hired by company Y?

It still clearly violates the spirit of the law. I guess in this case the government could argue that your attorney represents you; you're still effectively making a disclosure. I think it would be pretty much unheard of for a law firm to unilaterally announce a new client, so it's not like you could claim you didn't know it would happen, or it was out of your hands.

I just don't think it makes sense to look for a loophole here. That's not really how the legal system works, especially in these kinds of national security cases. If you make some conscious decision at some point that ends up informing people of a NSL, that's disclosure. There's no way around it. Setting up a system beforehand probably makes things worse, since you're proving that you fully understand the purpose of your actions and the spirit of the law.

Well, I guess at some level, I think NSLs violate the spirit of the law. Thus, it is worth examining the issue.

I particularly like the above structure because it separates the hiring of the firm from the disclosure of the NSL to the firm. In fact, you might choose to never actually disclose the NSL to the hired firm! Since the firm doesn't necessarily know the reason they're being engaged, they're not making a disclosure either.

I imagine an organization like the EFF could make it a policy to publicly disclose when they've been hired or terminated by a client.

I find it all very interesting...

> an organization like the EFF could make it a policy to publicly disclose when they've been hired or terminated by a client

I've worked at EFF for a long time and I don't believe EFF could adopt such a policy as a matter of prudence -- or legal ethics. I can tell you that there are many reasons that lawyers will regard the existence of conversations, client intake, consultations, and representation relationships as confidential. In fact, they see that as an important principle of legal ethics.

You can see some discussions of the confidentiality of the fact of legal representation as a matter of legal ethics at

https://www.google.com/#q=legal+ethics+"fact+of+representati...

Many times, EFF has to talk to clients and prospective clients about matters that, for a variety of reasons, it's not EFF's place to make public. Just as a start, it's important that people feel comfortable talking to our lawyers when they have questions about their rights in a particular situation, whether or not we end up going to court for that person, and knowing that the matter won't end up in the press or be revealed to other parties as a result of those conversations. Lawyers can also become subject to protective orders issued by courts specifically instructing them not to reveal information about a case.

Legal matters are sometimes embarrassing. Many people who've been sued, arrested, indicted, investigated, subpoenaed, or who anticipate a possibility that one of those things may happen, aren't necessarily keen to draw any further attention to the situation. Often, people involved in legal issues are quite anxious and distressed about what's happened to them. Sometimes people ask lawyers for help dealing with other people's improper disclosure of personal, private information, and naturally don't want their lawyers to draw more public attention to what's happened.

And people who are considering filing a lawsuit, giving information to a journalist, launching a new product, introducing or changing a corporate policy, or responding in some way to a government request, among other things, may have various acknowledged and alleged duties and responsibilities to other people. Announcing or implying that a particular legal case, issue, or situation exists or that a person is taking legal advice on a certain matter could have significant repercussions. It could lead to claims that someone has breached a duty of confidentiality, or it could damage personal or business relationships.

This isn't an exhaustive list of reasons that lawyers will keep confidential the fact of representation or the fact that a prospective client has sought legal advice (whether or not the lawyer ends up representing that client on an ongoing basis), but hopefully it helps to illustrate that this is something that lawyers take seriously as an ethical matter.

I might go with something like this:

"We, corporation X, hereby declare as a matter of public record that our counsel of choice in any criminal proceeding pertaining to a NSL is the EFF. This notice constitutes prior informed consent to any advertisement featuring us as a client of the EFF should we chose to retain them."

Nice! That's very simple and elegant.

What about something simple, like saying, "If we ever receive an NSL, we will change the background color of our web site."

That seems like a "disclosure" as defined by the NSL.

The original proposal for how to do warrant canaries is pretty valid (Steve Schear) -- basically they'd be a paid service, sort of like a bug bounty, and multiple canaries, very specific. They would be a revenue center, too.

https://groups.yahoo.com/neo/groups/cypherpunks-lne-archive/...

The more information your canary provides the more likely it is you'll get charged with breaching the NSL gag order. Current canaries don't bring down the ire of the various 3 letter agencies partially because they provide such tiny amount of information. Canaries down to the individual user would definitely be in violation of the gag order on an NSL and ever bring a lot of trouble if you did it for normal warrants!

Why monthly and not daily? Or hourly?

I haven't put much thought into it, I guess it could be daily but hourly is overkill I think.

Actually, this is an interesting startup idea - warrant canary as a service, with an API.

I think the point is that at some level of granularity, it's an announcement that you are currently working with the authorities, which is expressly forbidden in the NSL.

There's some point at which a court will decide that you aren't complying, and stepping over that point is bad for your business. Since that point is very fuzzy, it's a dangerous thing to play around with.

Exactly. They could even order you to keep updating it. In the Lavabit case, the FBI asked and judge agreed to compel Levison's silence + lies if they got the key with reason being his business wouldnt suffer if customers were lied to about their privacy. That argument and a judge agreeing with it are worth remembering in discussions like these.

https://canarywatch.org/

I wonder what the legal limits on the granularity are, probably up for a lot of interpretation in a court.

Before you receive an NSL, you have no limits. After you receive one, you may only report buckets (0-249, 250-499, etc.) on a quarterly basis.

it is a disturbing commentary on our rights in society that we have to actually think about these things as a normal part of life. it is remarkable our ability and resolve to continue enforcing our rights in new and creative ways, but we should actually all recognize the fact that our right to privacy has been completely violated, as well as our right to self-incrimination.

Traditional warrant canaries are issued regularly, just as you described it.

It would be fantastic to get more granular, at the account-level. That would be a cool differentiator for these hardcore privacy/security-oriented companies.

No company is going to do that. Doing that would get them in trouble with normal warrants much less NSLs.

Why? You send one email per user per month: "We didn't get any warrants that cover your account." Nothing to it.

Because that would get the company in trouble even a normal warrant to say nothing of the gag order on an NSL. It's too specific and tips off the exact people being investigated. The lawsuit the company would be hit with would be huge, expensive and a pretty straight forward loss.

I don't see why. It's the exact same principle as standard warrant canaries.

It's the same rough idea except it goes from "we received at least one letter once about some user(s) on this site" to "we received a letter about YOU," that's a huge difference.

Canaries aren't challenged currently partially because they give out so little information that it's really not worth the governments time to go after people. What the NSL gag really aims to prevent is to keep the people targeted by the NSLs from knowing that they're under investigation. If a company started doing canaries that applied down to a single person they'd be sued the first time they stopped sending one after getting a letter.

Also I'm not entirely sure that even if a judge found that an NSL can't compel you to send a zombie canary that it follows that the company can't be fined or sanctioned for breaking the gag order.

It's not "we received a letter about you". If they get a NSL, then they _don't_ post the canary. That's a key difference, between action and inaction, and it's what the whole thing rests on.

Not that it's been tested in (non-secret) court.

I'm saying that the reason warrant canaries haven't gotten companies in trouble yet is because they're so vague as to be practically useless and that revealing to a person that they were the target of an NSL, through either action or inaction, would probably be over the line legally.

At the very least it'd be a massively expensive test case and the companies that have the money to pay for that have too much to lose on a case that isn't solid. It'll come down to the very technical legal question of action vs inaction that would probably wind up in the supreme court.

"We did not, at 2:43pm on the 17th of July, receive a request for any information related to the account identified as jakobdabo." (Request actually received at 2:44pm.) That'll trick 'em for sure!

I imagine there are legal difficulties with being more transparent, but I will say Silent Circle's occasional failures to manage their canary well have made it an unreliable signal.

That's illegal

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