4 ms·

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 Miran

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.

burkaman 10y ago
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.
- matthewmarkus 10y ago
  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#Choice_of_counsel 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?!
  - burkaman 10y ago
    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.
    - matthewmarkus 10y ago
      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.
      - burkaman 10y ago
        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 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.
        matthewmarkus 10y ago
        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/ 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/ 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!
        burkaman 10y ago
        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.
  - deleted 10y ago
    [deleted]
anonbanker 10y ago
burning karma as breadcrumbs to a fantastic idea.
waterphone 10y ago
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 https://en.wikipedia.org/wiki/Lavabit
solotronics 10y ago
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.
- burkaman 10y ago
  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.
  - matthewmarkus 10y ago
    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?
    - burkaman 10y ago
      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.
      - matthewmarkus 10y ago
        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...
alphapapa 10y ago
What about something simple, like saying, "If we ever receive an NSL, we will change the background color of our web site."
- matthewmarkus 10y ago
  That seems like a "disclosure" as defined by the NSL.

burkaman 10y ago

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.

matthewmarkus 10y ago
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#Choice_of_counsel 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?!
- burkaman 10y ago
  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.
  - matthewmarkus 10y ago
    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.
    - burkaman 10y ago
      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 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.
      - matthewmarkus 10y ago
        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/ 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/ 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!
        burkaman 10y ago
        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.
- deleted 10y ago
  [deleted]

anonbanker 10y ago

burning karma as breadcrumbs to a fantastic idea.

waterphone 10y ago

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

solotronics 10y ago

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.

burkaman 10y ago
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.
- matthewmarkus 10y ago
  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?
  - burkaman 10y ago
    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.
    - matthewmarkus 10y ago
      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...

alphapapa 10y ago

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

matthewmarkus 10y ago
That seems like a "disclosure" as defined by the NSL.