Comment by tithe | Hacker News Reader

Comment by tithe | Hacker News Reader

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I thought these were not considered effective, as their removal effectively violates the gag order?

Update: From 2014, but Moxie Marlinspike comments that "every lawyer we've spoken to has confirmed that [warrant canaries] would not work":

> If it's illegal to advertise that you've received a court order of some kind, it's illegal to intentionally and knowingly take any action that has the effect of advertising the receipt of that order. A judge can't force you to do anything, but every lawyer I've spoken to has indicated that having a "canary" you remove or choose not to update would likely have the same legal consequences as simply posting something that explicitly says you've received something.

https://web.archive.org/web/20141027143819/https://github.co...

There isn't really consensus on the matter. The government can probably compel you to stop updating the canary, but it's unclear if they can force you to publish a false update. As far as I know, it has not been tested in court.

> force you to publish a false update.

I see. That's the compelled speech that the first amendment protects against, as outlined in the EFF FAQ [0]. Interesting.

[0] https://www.eff.org/deeplinks/2014/04/warrant-canary-faq

The Roberts court is fine with compelled speech, so long as it is as antiabortion. So I assume the same can be applied here.

This falls apart when you consider that courts aren't robots.

I couldn't stand on a street corner and swing my arm every day, and when eventually my fist collides with somebody, claim to the court "oh, I didn't assault him, I swing my fist every day in this arc and he just got in my way".

Likewise, for warrant canaries, it's unlikely that the court would consider it compelled speech when the entire premise is to use repeated speech to subvert the court's rulings.

"we updated our terms of service as usual and a staff member accidentally deleted it."

Corps get away with a lot because they don't actually operate as single entities even if the law artificially treats them as one.

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