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Comment by pbhjpbhj | Hacker News Reader

So the law, presumably, says 'you can't tell people you've received a warrant' (or a national security letters?)?

Surely this convoluted scheme is still telling people you've received a warrant??

Has there been caselaw on this?

You are correct that it is a convoluted scheme, but the goal of warrant canary users is to deliberately create a situation where their first amendment rights would be infringed by attempts to vigorously enforce the laws around NSL gag orders.

What isn't firmly tested in court is this specific application of the idea that the first amendment protects against compelled speech, although there have been other similar cases (see the Wiki article [1])

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

There's plenty of compelled speech in a commercial context. Just one example: look at your bottle of milk. It probably says "made with milk from cowsnot treated with rBST hormone", but the FDA also compels them to say effectively "not that there is anything wrong with rBST".

I’d love to read a qualified and accomplished lawyers take on the pedantic differences between your example and the subject at hand.

There is an argument that compelled factual speech (such as disclosures, warnings, safety, ingredient information, "truth in lending", etc) is different than compelling someone to say something that isn't true.

> but the FDA also compels them to say effectively "not that there is anything wrong with rBST".

Source?

Edit, found this. Wonder why this reasoning is not used for false implications in all the other labeling for supplements, vitamins, herbal, and organic food.

Even for milk, there is “A2” milk sold next to regular milk implying that A2 is somehow more nutritious, but it is not required to say “A1 milk has not been shown to be any worse than A2”.

https://www.govinfo.gov/content/pkg/FR-1994-02-10/html/94-32...

> Because of the presence of natural bST in milk, no milk is ``bST-free,'' and a ``bST-free'' labeling statement would be false. Also, FDA is concerned that the term ``rbST free'' may imply a compositional difference between milk from treated and untreated cows rather than a difference in the way the milk is produced. Instead, the concept would better be formulated as ``from cows not treated with rbST'' or in other similar ways. However, even such a statement, which asserts that rbST has not been used in the production of the subject milk, has the potential to be misunderstood by consumers. Without proper context, such statements could be misleading. Such unqualified statements may imply that milk from untreated cows is safer or of higher quality than milk from treated cows. Such an implication would be false and misleading.

>FDA believes such misleading implications could best be avoided by the use of accompanying information that puts the statement in a proper context. Proper context could be achieved in a number of different ways. For example, accompanying the statement ``from cows not treated with rbST'' with the statement that ``No significant difference has been shown between milk derived from rbST-treated and non-rbST-treated cows'' would put the claim in proper context. Proper context could also be achieved by conveying the firm's reasons (other than safety or quality) for choosing not to use milk from cows treated with rbST, as long as the label is truthful and nonmisleading.

Well, rBST is banned in the EU, non on health or safety but on animal welfare grounds, as cow udders are not made for that level of milk production and mechanical milking causes distress and injury (mastitis) to the cows.

Also there is a difference between BST (bovine somatotropinnatural) and rBST (r stands for recombinant, the manufacturing process) the synthetic kind. The FDA's "concerns" are transparently based purely on the commercial interests of rBST producers like Monsanto and their customers'.

I was struck by the negativity and fatalism of these comments, because in my memory we've discussed warrant canaries, and rsync's in particular, on HN many times over the years.

In my memory the comments used to be more positive about both the effectiveness of canaries and about the sheer cleverness, ingenuity and spirit of fighting back against tyranny.

I wondered what happened to the HN hive mind over the years, has it become more deferential to the authoritarian state, more accepting of the erosion of essential freedoms in exchange for ostensible safety, more dismissive of clever hacks?

But then I read a thread from 13 years ago: https://news.ycombinator.com/item?id=702247

While there's a noticeable positive sentiment, many of the skeptical comments of today could have been copied verbatim from July, 2009.

So perhaps my memory is faulty.

>I wondered what happened to the HN hive mind over the years, has it become more deferential to the authoritarian state, more accepting of the erosion of essential freedoms in exchange for ostensible safety, more dismissive of clever hacks?

>But then I read a thread from 13 years ago: https://news.ycombinator.com/item?id=702247

>While there's a noticeable positive sentiment, many of the skeptical comments of today could have been copied verbatim from July, 2009.

The difference is that in 2009 and now a Democrat is in the White House, so those who are convinced that "their side" can't do anything wrong are more willing to accept the authoritarian state.

Look at the Warrant Canary Wikipedia page. Would Jessamyn West—associated so closely with Metafilter, a site that basically self-destructed because its hivemind became so self-reinforcing as to immediately shun anyone at any variance with it in a way that would make a Maoist struggle session conductor proud[1]—have created her sign for libraries if George W. Bush had not been president at the time? I doubt it.

[1] https://news.ycombinator.com/item?id=32880651

Since Snowden we've discovered just how lawless the government is, and what's worse, the spooks also got away scot-free with no consequences whatsoever for wanton violations of the Fourth Amendment.

Saying that you shouldn't rely on legally untested warrant canaries as a sure-fire protection is not the same as agreeing with the executive branch's overreach abetted by a supine & craven Congress and a Judicial branch all too inclined to defer to the executive when spurious security justifications are trotted out.

I don't understand this meme, which is absurdly popular.

"Not updating a warrant canary" isn't the crime here. "Creating a warrant canary" is the crime, as it's an action whose only purpose is to violate a gag order.

Are you saying that you think it's currently illegal for rsync to be making this claim?

Or that if they ever receive a gag order then their earlier action was retroactively illegal?

> Creating a warrant canary" is the crime, as it's an action whose only purpose is to violate a gag order.

There is no gag order. That's the point.

Are you suggesting that any action that might violate any future order is a crime? If so, what do you base that on?

If not, since there is no order before them, are you suggesting there is a specific statute that they are violating? If so, which one?

If not, what would make this behavior criminal?

If we have to pick between the first amendment and the courts helping to secretly enforce what are quite often shady laws, how should a people born to the Enlightenment choose?

> "Not updating a warrant canary" isn't the crime here. "Creating a warrant canary" is the crime, as it's an action whose only purpose is to violate a gag order.

It walks a really fine line IMO. The way I see it is it works in two ways:

* When you create one, you're not referencing a current gag order, but rather an imaginary future one. If creating one is a crime then doing just about anything (deleting an email or throwing away a letter) is also a crime because you can be destroying evidence in a potential future case or investigation not brought yet.

* Once this warrant is issued, then your run into this case where any associated gag order is "one way". That is the government can order you not to disclose the warrant but they cannot compel you to lie and update the canary to reflect that you still have not gotten one yet.

INAL.

conspiracy to circumvent the patriot act doesn't have to be tied to any particular court order.

Ok so for example I deleted a confirmation email that Delta sent me for a flight I had yesterday. Suppose for some reason the US Govt opens some investigation into my travel, should I be charged with conspiracy to destroy evidence since I should have "known" that I "might" be investigated.

No that would be silly and there would be no way to prove malicious intent. You could make a million arguments for a canary in the same way.

If you had reason to believe that the particular email will be called for in a court, and that is the reason you are deleting it, then it is definitely a crime yes.

Sounds like a fancy way to do ex post facto criminalization by convenience without technically changing a law.

You did not have a reason. You just have this general notion that any one of your emails could, hypothetically, become evidence in some unspecified court case sometime in the future.

of course the government has to prove intent (beyond reasonable doubt), which is not easy, but also getting sued in US federal criminal court, even with good odds is also not what you'd call a non-issue.

setting up warrant canaries is probably a good idea if you have the ideological conviction to face the government's bullying. spending some money on getting lawyers' opinion is also probably a very good idea.

but all this serves as evidence for intent.

so it's not that simple to do it with some persuasive/plausible alternative explanation.

the whole point of gag orders and the mandated/compelled performance is to help whatever investigation. of course if someone doesn't cooperate with law enforcement and/or the prosecutor that's their choice, and in this case it's basically itself a charge. (obstruction of justice is not a new thing after all.) the complication is that speech is a special action.

The problem with this analysis is that First Amendment rights were already successfully infringed with the gag order that necessitated the canary, which itself has to meet the (maximal) strict scrutiny standard; in other words, there's no prima facie reason to believe that the legal argument defending the canary would fare any better than the legal argument objecting to the gag order.

There are subtle and/or complicated reasons to believe the canary would work! I'm not here to make the case that canaries are invalid, only to establish that among legal experts, this is not a settled issue.

> The problem with this analysis is that First Amendment rights were already successfully infringed with the gag order that necessitated the canary, which itself has to meet the (maximal) strict scrutiny standard

Has the supreme court actually ruled on the constitutionality of gag orders? Until then it's not completely settled that it's despite rulings in lower courts.

These specifically, not that I know of. But gag orders in general? Nebraska Press v. Stuart, 3 part test: harm to the person being gagged, least restrictive means, and effectiveness of the order. That was in a press case, where the burden is much higher on the government than in these cases.

Specific gag orders can and have failed in appeals!

The problem with this argument as it pertains to warrant canaries is that defeating the gag order also defeats the purpose of the warrant canary. The question we're begging here is: if the gag order survives strict scrutiny, why won't the order to keep the canary up?

I think there may be a useful distinction here between prior restraint and compelled speech. If you post the statement "we have not received a gagged warrant since January 3 2023" and you receive a gagged warrant on January 4 2023, does the government really have the power to compel you to post the statement "we have not received a gagged warrant since January 5 2023" the next day? You don't even have to take down the January 3 canary; just leave it up long enough that people get suspicious that you haven't updated it.

The government routinely compels speech.

Can you give an example where the US government forced a company to lie to the public which we've only found out later?

Not just a lie, but false advertising, which is a federal offense in and of itself.

Feds always get what they want. You cannot afford to appeal to the supreme court, both financially and because non cooperation will cause you to receive retaliation. FBI has made it so an accusation of a crime can easily become a conspiracy, and a conspiracy felony is more prison time than cooperation for most non-violent crime. This is why big gov is fascism, they can do whatever they want. You'll never see the court documents.

Even if you file USSC appeal via petition for certiorari, they get to choose if they want to hear it.

The State SCs I have researched are the same; they choose if they want to hear the case. If they decide to not hear it, the cert is denied which doesn't mean the argument was decided. It just wasn't heard by the court.

Judiciary Act of 1925

https://www.uscourts.gov/about-federal-courts/educational-re...

The only way that warrant canaries could be successfully outlawed would be to have laws that apply retroactively or possibly outlaw anyone from any discussion of warrants at any time (with the exception of officers of the law - would make their job difficult).

The issue is that people post a warrant canary before they have any warrant served, so it'd be a strange situation of being legal before receiving a warrant and then suddenly transitioning to illegal. Maybe one way round it would be to make it illegal to change any procedures upon receiving a warrant so that they would be forced to continue posting warrant canaries that are then false.

I don't know why you think this is the case, but I haven't read any analysis of canary legality that pivots on ex-post-facto laws. As I understand it, the question comes down to: a court order requiring a company to maintain its warrant canary will amount to compelled false speech (compelled speech happens already, compelled false speech is unique to this situation) and will as such be subject to the strict scrutiny standard. The case against warrant canaries: the gag order itself is already subject to strict scrutiny, and people who post warrant canaries have gone out of their way to put themselves in a situation where they will need to make false statements. The case for canaries: compelled false statements are more intrusive than a gag order and will receive, somehow, more scrutiny.

It's not simple and it isn't resolved in law.

Well, I'm not any kind of legal expert and don't have any specific domain knowledge, but it just seems logical to me that it's perfectly legal to post a warrant canary before any warrants have been served.

I was addressing the parent's comment about how warrant canaries should be illegal due to them being an attempt to get around the gag order, but doesn't that involve a gag order making a previously legal action into an illegal action and assumes knowledge that a gag order will be issued in the future?

Laws never said anything about what you stop saying, in this context.

I think courts often encounter people who have clever interpretations of laws, but who then get a bit of a rude awakening when their "Air Bud" style workaround gets slapped down when it meets a surly judge who has no time for their shit. Obviously not a lawyer, so I don't know whether this is one of these, whether it's something yet to be tested in court or whether Warrant Canaries are already accepted as valid.

You must be referencing a court case where a modern warrant canary has ended with the perp in jail. Who might that be? You prefaced with "I think", but spoke with quite steadfast certainty, surely this piqued your interest for a reason.

No, nothing specifically related to Warrant Canaries but some law podcasts I listened to - ALAB and Mic Dicta for example - have referenced this phenomenon a few times. It's usually a tech bro or sovereign citizen with a novel interpretation of a law that ends up failing when they eventually have to try to argue their case it in court.

Just because some legal strategies are batshit crazy sovcit nonsense doesn’t mean all legal strategies are.

See: Apple vs FBI in San Bernardino.

True, and it's been elaborated elsewhere that these have already been tested in the supreme court. But you have to admit that without that precedent, it does seem a little bit cheeky - "oh the law says I can't do X, well it doesn't say I can't simply not do inverse(X)" :)

For a funny / not funny example, see the attempts to ban analogs of illegal drugs. The whole research chemical thing is a result of the need to legislate exactly what’s illegal.

Sure, but warrant canaries sound like sovereign citizen stuff.

Supreme Court decisions can sound like sovcit stuff when they reference English common law, the Magna Carta, etc. Warrant canaries are just intended to exploit a technicality. There are a lot of technicalities in law that authoritarians don't like.

It's true, warrant canaries are not as implausible as sovcit arguments.

Yes, I've seen this (in UK, but can't think off-hand of an example) where the judge says "yeah, no" to someone trying to be clever.

"I've seen this in a completely different jurisdiction but don't remember even a single specific" is not a particularly compelling counterargument.

Especially since the UK has way more of a “legal precedent” style of law than the US constitutional system.

You mean "common law"? US Constitutional law is deeply based on "legal precedent".

I don't think this thread had the tone of an argument at all. If there were two people seriously butting heads going back and forth on something, yeah sure. But pulling a [Citation Needed] on some people who aren't experts but want to have a sincere and pretty civil discussion feels a bit much.

The is substantial precedent that the US constitution prevents the government from compelling speech, litigated all they way to supreme court. This isn't some sovcit-level workaround, there is actual legal theory behind it.

It is important to note that the more "low-effort" style of warrant canary, or simply posting a static page that says that you have not been served a warrant, is probably not safe. Taking the page down is possibly an action you can be legally prevented from doing. However, that's not what rsync.net is doing. They are specifically posting a new one every week, because no court or authority can compel them to post one if they don't want to under US law.

Then why does every food product have a "nutrition facts" label, mandated by the FDA, if said mandate is unconstitutional? Either some compelled speech is constitutional, or Nestle hasn't bothered to litgate it (strains credibility), or all the food manufacturers think that American consumers care enough about having the nutrition facts that they'd have a competitive disadvantage if they removed them (even less credible).

Edit: My point is that "compelled speech" isn't the issue, it's "compelled false speech" vs "compelled silence", either of which infringes on the right to free speech in some way.

Further, if this actually gets litigated, it seems pretty likely that the DOJ will argue that the government isn't compelling "false" speech, so much as the canary's owners deliberately created a situation where compliance with a lawful compulsion to silence would require them to lie; that they more or less "banked" a lie, and then tried to pin that on the government when it was time to make the withdrawal.

(That's not to say this argument, or any canary argument, would avail; who the hell knows, should be our watchwords in this matter.)

> why does every food product have a "nutrition facts" label, mandated by the FDA

The FDA can't compel you to say anything you don't want to. But they can refuse to let you sell your product. The right to sell food isn't as strongly protected as the right to political expression.

The government compels speech like, all the time. Can you cite this substantial precedent you're referring to? The cancer warning label on my couch wants to have words.

https://www.reuters.com/article/us-otc-speech/when-the-gover... says:

> On Friday, the 9th U.S. Circuit Court of Appeals joined a slowly emerging consensus among the federal circuits, holding that governments have the right to mandate corporate speech “if the information in the disclosure is reasonably related to a substantial governmental interest and is purely factual.”

The latter requirement does not seem to be held in the case of compelling rsync to post an updated warrant canary claiming not to have received a warrant if they have.

Furthermore, in the case of cancer warnings, the actual law is phrased as:

> No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual

so, it's not so much compelled speech "out of the blue", rather it's a requirement of doing business. There are other ways the business can comply with the law, such as not including the chemical in the product. In the case of warrant canaries, I'd be surprised if there's a similar law requiring them to be posted to do business.

I have to agree with you. Freeman of the land come to mind.

I think the danger here is the interpretation of the prohibition on telling people you've been served with a secret warrant.

Whilst you seemingly can't force someone to do something the fact that not doing that thing is effectively telling people you've been served a warrant is grounds at least to take you to court.

I can only imagine this canary process being manual, if it were automated I'm unsure it could be considered speech (obvs: IANAL).

Until tested in court it's up in the area.

Comparing warrant canaries to sovereign citizens is disrespect almost to the degree of caricature.

I'm not comparing them, in that paragraph I'm commenting on the parents comment about people being slapped down by surly judges. That's why is in the first paragraph on its own.

I think you're taking non-US[0], non-lawyers speculating about US law a little bit too seriously. I mean it could be argued that we shouldn't even be commenting if we don't know, but where's the fun in that? It's Hacker News, not Lawyer News :)

[0] - or at least I'm non-US

Unfortunately surly judges also do things like impose a trial tax for daring not to take a plea deal. The legal system gets to play Calvinball.

If you force somebody (who's not even the defendent, just a witness in the case) to (cryptographially) sign a message of your own choosing, why not just take the shortcut of forcing the defendant to sign whatever confession you want them to? Much easier, quicker and cheaper than these fancy workarounds.

Good point. It always reminds me of the “crypto nerd” xkcd.

https://xkcd.com/538/

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