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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 t

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

gefh 11y ago
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".
- socket0 11y ago
  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.
  - rubyfan 11y ago
    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.
- fennecfoxen 11y ago
  > 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.
pluma 11y ago
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).
- foota 11y ago
  It's hard to swallow that the courts could force someone to lie.
  - slight 11y ago
    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.
    - kqr 11y ago
      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.
cyphar 11y ago
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).

gefh 11y ago

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".

socket0 11y ago
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.
- rubyfan 11y ago
  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.
fennecfoxen 11y ago
> 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.

pluma 11y ago

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).

foota 11y ago
It's hard to swallow that the courts could force someone to lie.
- slight 11y ago
  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.
  - kqr 11y ago
    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.

cyphar 11y ago

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).