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Comment by piotrkaminski | Hacker News Reader

I'm kinda curious how the law would treat a dead man's switch that automatically wipes the phone if you haven't unlocked it for N hours (say, 24 or 48). (Assuming it was set up well before any event that prompted the phone's seizure, of course.) Could they somehow charge you for not warning the police about the auto-wipe when they took your phone? Does the answer change if you were officially under arrest and had a right to remain silent?

This seems like a pretty good idea in any case. If the seizing party can't crack the passcode anyway then it's a no-op. If they can then presumably they won't/can't do it right away, so it would add a bit of defense in depth.

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> Does the answer change if you were officially under arrest and had a right to remain silent?

Being formally under arrest doesn't affect whether you have the right to remain silent. It affects whether the police are required to tell you that you do.

In Germany - and I assume in the States as well - being a witness will place much more legal duties on you than being a suspect. A witness for example can be obligated to give testimony. Which is why police sometimes intentionally declares a suspect a witness.

In the US you have the 5th amendment which means you cannot be compelled to testify against yourself witnesses that may incriminate themselves would get an immunity deal before taking the stand the only time where you cannot invoke the 5th is during cross when you agreed to testify.

Under certain cases in which your testimony cannot be used against you the court can compel you to testify if you refuse then you can be charged with contempt a common case for this would be a court ordering a reporter to disclose their source.

But the prosecution classifying a defendant as a witness would not fly.

Fascinating how this varies between nations and cultures. In Norwegian case law, refusing to explain yourself can be considered indirect evidence of guilt.

I remember a report from a recent Norwegian criminal trial, where the judge himself warned the accused that refusing to give an explanation could reflect badly on the question of whether she was guilty or not.

Refusing to provide an alibi is going to cause you problems in the US as well, but generally in the US defendants talk through their lawyers, not directly.

In the US, the Fifth Amendment protects the opposite: you cannot be compelled to testify against yourself in the US, and choosing to take the Fifth cannot be considered evidence of guilt. There's some evidence that, in practice, this isn't always true, but judges are required to clearly explain this to jurors.

I wonder how much this has to do with a nation's format of policing and especially interrogation.

The legal protection for refusing to speak in the US is the Fifth Amendment, which of course predates most modern police tactics. But there are basically no calls to change that, and it has a lot of cultural support too - there's plenty of media where "I ain't sayin' nothin'" marks a tough or well-informed character instead of a guilty one.

The other side of which is that US police have very few boundaries in interrogations other than giving a Miranda warning and avoid physical violence. A lot of police forces rely heavily on the Reid Technique, which presumes the suspect is guilty and has a long history of producing false confessions. They're also free to outright lie about both the state of evidence and how a confession will be handled.

I don't know a great deal about Norwegian policing, but just hearing this I would predict that "brought in for questioning" doesn't have the same "try to drag a confession out of you" associations it does in the US.

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

> The jury was instructed that they may find the failure by the store to retain (and subsequently provide to the other party) the additional footage may be considered an attempt to hide evidence that Brookshire Brothers' management knew would be damaging to their case.

Although this may not be settled law.

But it continues

> The Texas Supreme Court reversed, ordering a new trial, stating that it was abuse of discretion by the trial court to issue a spoliation inference instruction in this case, that the court should have imposed a different corrective measure on Brookshire Brothers (a less severe sanction), and that a spoliation inference instruction to the jury is only warranted in egregious cases of destruction of relevant evidence.

I think it is essentially identical to deletion policies - except you probably don't have any legal requirements for minimum retention policies not a lawyer admittedly.

Essentially they need to subpeona you to formally tell you to preserve all potential evidence and stop the deletions or take backups such that the day to day deletions are irrelevant. The later being a fine but important distinction that shredding extra copies of your own is okay. You wouldn't get arrested for copying a customer's account information to do profit margin math and then shred the copy when done to ensure their privacy.

If you are unbound by other regulations there is nothing illegal about reimagining your device every 24 hours.

If they were trying to keep a low investigation profile and never told you that you were to preserve the data the destruction of evidence is on their incompetence.

If you implemented it post subpoena you are at fault of course.

That a good question. I don't know how related it is, but I haven't seen anything about the legality or illegality of warrant canaries[1], so there might be something to it.

[1]https://en.wikipedia.org/wiki/Warrant_canary

So the law says NOT to notify users about secret subpoenas. If you do, no matter how cute you think your method is, IMO, you broke the law. Oh, but just I took a file offline. Nope.

The law can be unjust but that's another thing.

But I didnt even take a file offline. I just forgot to update it.

So you've updated it 45 times and the time you "forgot" to update coincided with the time you got the secret order?

Isn’t there a free speech aspect to canaries? Can the court force someone to publicly tell an explicit lie?

only if you're covert working for 3 lettered agencies can you lie and get away with it. Though they'd get you out some other way to avoid blowing your cover.

I would argue that you brought yourself in this mess. The only valid reason for having a canary is to evade the requirements of the law, so you can't complain.

It's an argument, I'm no fan of secret orders or the government telling you to lie or keep quiet.

Fundamental rights generally override "you got yourself into this mess", don't they?

Well, the right to freedom of movement can be taken away if you've taken yourself into a mess that ends you in prison (and in tens of other cases for that matter).

Fundamental rights can be in conflict with each other. It's not uncommon for a judge to impose gag orders, which ostensibly protects a fair trial, but infringes on a person's rights to talk about a case in public.

A NSL or similar already prevents you from saying something and limits your free speech.

The court will, either way, not be impressed by someone communicating that they got a warrant by not communicating in a previously arranged manner (this is basically communicating in a code language).

I’d expect a court to find against this in the same way it would find against someone communicating the information in a foreign language. It’s the intent and how you use the file that matters to them.

The sticking point is whether you can be compelled to proactively lie by an NSL (when an NSL is actually a gag order, preventing you from talking about NSLs), given freedom-of-speech in the US. But quite a few people agree with you that courts probably wouldn't care about this level of pedantry[1].

[1]: https://www.schneier.com/blog/archives/2015/03/australia_out...

That's not how warrant canaries work, though there is no case law I'm aware of that determines whether or not they are actually legal.

The idea is that you have a message you update regularly to specify whether you have received an NSL -- you never delete the latest version. If you get an NSL you comply by doing nothing (and by your inactivity you've signalled that the warrant canary was tripped). There is a valid freedom-of-speech question (at least in the US) about whether you can be compelled to continue updating the message -- you can be forced to be silent but can you be forced to proactively lie when the NSL forced you to be silent?

Though, of course, they could subpoena the signing key for the canary and destroying the key would be destruction of evidence. A quorum system for signing might be more robust against this, but I have my doubts.

And of course quite a few folks think that warrant canaries wouldn't work in any case[1].

[1]: https://www.schneier.com/blog/archives/2015/03/australia_out...

Schneier is right. Warrant canaries are just another side of the same coin as the sovereign citizen movement. Word games and magical thinking is not going to fool any judges.

While I do think secret warrants are unjust most of the time (and nobody can verify that they are justly applied when applied), the intent of the law is obviously to not let anyone know about the warrant, if you do you have broken the law regardless of how you did it. Any judge that rules otherwise is engaging in judicial activism.

Maybe, though I would say that it is odd that some companies (who presumably have legal council) have decided to implement warrant canaries. Quite a few have "activated" them, though it's quite possible some lawyer told them to knock it off. It is at least a little less crazy than arguing that you are a free inhabitant and that you don't need a drivers' license.

In Australia we have an explicit law which makes it illegal to talk about the existence or non-existence of a journalist surveillance warrant (though in Australia you might not even be aware of such a warrant's existence). This means that any discussion of such warrants is technically illegal -- making warrant canaries impossible to implement here. The minimum sentence is 2 years, and it's specifically targeted toward journalists (and affects anyone who shares already-public information -- so retweeting such a story on Twitter would be a serious crime).

> Maybe, though I would say that it is odd that some companies (who presumably have legal council) have decided to implement warrant canaries

Warrant canaries are an effective PR move irrespective of the legality of tripping them. They only stop working as a PR move if you don't trip them after getting a secret warrant and that warrant later becomes non-secret.

I hadn't thought of that -- you're probably right.

I think it's a bit strong to conclude that if a judge disagrees with you on this topic it is activism. This is relatively untested/uncharted legal territory and, at least in the US, it is complex. For places like Australia that have no guaranteed first amendment rights, I would agree that it is much more cut and dry because there are other laws already in place that can limit your speech through due process.

The same is true about due process in the US, but there are limitations on what it can apply to regarding speech. The US government can legally stop you from speaking on certain matters via court order. But speech is explicitly separated from lack of speech in the US and are treated as two totally separate things. There is legal standing that non-speech cannot be considered as speech - this goes hand in hand with the 5th amendment and how a person's refusal to speak and provide testimony against themselves cannot in of itself be considered evidence against them. So a lack of speech cannot be considered evidence of guilt.

Also, there is a substantial body of law protecting the people (even government employees) from being forced to say anything by government. So, for others here wondering if the US can require them to keep updating it - they almost certainly cannot. There may be a way around that because the US government does have a fairly broad ability to regulate businesses so they could, in theory, pass legislation requiring businesses update this...maybe. But I doubt such a law would pass challenges as it would be challenged on first amendment grounds and the idea that other compulsive speech requirements on businesses have generally been geared toward information sharing and notifications of legal rights and other things that protect consumers. This is something entirely different and doesn't fall in those categories. Those requirements are all structured around spreading truthful information to keep consumers informed where here the government would be requiring businesses to lie - something that could easily be argued is against consumer interest.

Thank you for this post. People seem to be treating warrant canaries as a sort of “gotcha!” defense that no judge would take seriously, but you’ve given a good explanation of why it’s not.

It should be noted that there is currently no public case-law on whether warrant canaries are actually legal. So really, until this topic goes before a court in a benchmark case, your guess is as good as mine.

I agree there are several theoretical reasons why warrant canaries might actually be a useful tool, but it's just as likely that intentionally constructing a scenario where you are implicitly telling people about a gag order through a bunch of hurdles would not be considered following the spirit of the law.

For instance, if you get an NSL you can't tell your family about it. When going to see your lawyer, you need to omit the reason why you're seeing a lawyer -- which is basically de-facto requiring you to actively lie to your family (because "I can't tell you why I'm seeing my lawyer" is arguably code for "I have received an NSL" if your family is aware that you might get an NSL one day).

I personally think this is massively unjust (and in Australia, we have explicit laws to disallow speaking about the existence or non-existence of any such secret warrants -- which makes even attempting to set up a warrant canary a crime with a minimum 2 year sentence).

Further down the wikipedia page there’s a link to moxie marlinspike saying warrant canaries don’t work because not updating them is legally the same as disclosing you’ve received a secret warrant. In other words, you have to lie in your canary or violate the warrant.

Has that been tested at the appellate level? The government can compel silence (gag orders,) but the government can’t compel speech, which is what updating a warrant canary is. This seems to be ready made for the Supreme Court.

There's also the question of a more manual implementation, rather than a self-initiated statement.

If someone just so happens to ask me on Twitter each day if I received an order, and I say no, but on day 99 I don't reply or say "I'd rather not answer", does that muddy the waters a little?

>>Could they somehow charge you for not warning the police about the auto-wipe when they took your phone?

They might charge but "I was arrested, my mind was going nuts...was setup a long time ago, never hit my mind" etc etc. You need to be doing it on purpose and knowingly.

Well, unless you never needed to reset the switch while you kept evidence on the phone, you have demonstrated that you are aware of the system and actively worked to keep it running. That a system you knowingly and on purpose set up to destroy evidence then worked exactly as intended once arrested isn't a defence.

You are probably better off just pretending it got bricked by some random software update.

>>That a system you knowingly and on purpose set up to destroy evidence then worked exactly as intended once arrested isn't a defence.

Thieves also steal phones, not everyone is El Chappo's #2 guy

I'm not saying there is no legitimate reason for having that system, but if you reset the switch while knowingly having evidence on your phone then letting it triggering after being arrested is intentionally destroying evidence.

There's already a weak version of this, in that most phones which have biometric authentication stop accepting it if the phone hasn't been unlocked for a few days.

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