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> Apple's official statement clearly said, they're not under any form of NSL or gag order. Except that a NSL can (legally) command the recipient to lie about i

> Apple's official statement clearly said, they're not under any form of NSL or gag order. Except that a NSL can (legally) command the recipient to lie about it.

roblabla 8y ago
An NSL cannot force you to lie. You can say "no comment", and that's how it's always been handled. Why would they vehemently deny an NSL (with all the risks involved) when "no comment" would suffice ?
- lovich 8y ago
  Is that still true though? The NSL already compel speech in that they limit what you can say. We already have secret courts making decisions that we find out about years later. At this point the major wall has been breached in terms of rights, altering speech for national security, and we can no longer trust anything. If the secret courts decided they were going to compel active speech instead of compelling negative speech, what mechanism would let us know of the change? I don't think there is any
  - lawnchair_larry 8y ago
    That is not what compel speech means.
  - garmaine 8y ago
    Most people in this thread have zero experience with national security issues, and the ACLU/EFF opinions are more what those organizations feel should be the constitutional interpretation, not what actual circumstance is. You certainly can be compelled to say certain things to keep classified information secret, at risk of federal prison or worse, and this is the same law that is being abused for NSLs.
    - mattzito 8y ago
      I’ve seen you make this claim several times in this thread, but haven’t provided any evidence. Can you provide a source that says that the federal government can compel false statements as part of national security demands?
      - scrps 8y ago
        I was curious about this as well and did a bit of searching around (I didn't dig that deeply and IANAL) and found this: https://www.yalelawjournal.org/forum/warrant-canaries-and-disclosure-by-design https://www.yalelawjournal.org/forum/warrant-canaries-and-di... Specifically Section IV, subsection C "Canaries and the First Amendment Status of Compelled Lies"
    - breatheoften 8y ago
      That sounds like a pretty nightmarish tactic ... Is there a way where the government could either purposefully disclose classified information (or retroactively classify it) so as to force certain individuals into making particular statements or denials via the threat that if they said otherwise they would be guilty of disclosing classified information ...?
vageli 8y ago
> Except that a NSL can (legally) command the recipient to lie about it. Do you have a source for this statement? As far as I'm aware, you can be compelled to remain silent but not compelled to give a false statement.
- garmaine 8y ago
  You can be compelled to act exactly as you would as if the NSL had not been issued, and indeed they seem to contain language to that effect. A reasonable response would be to adopt a policy of "no comment" and most do, but if you have previously responded to questions about NSLs in the negative, you would then be required to continue doing the same. Q: Have you received an NSL? A: No. Q: Now have you received an NSL? A: Still nope. (Government issues NSL) Q: What about now? A: No comment. ^ This would be a clear canary indication that an NSL has been issued, which is in directly contradiction of the terms of the secrecy requirements laid out in the NSL. The only reasonable response (aside from supporting the ACLU and EFF to end this nonsense) is to adopt the "no comment" policy early, which most do. However Apple has now broken that strategy, if they haven't already.
  - stephenr 8y ago
    Apple made a statement, that they have are not under NSL/gag. They don’t routinely make these statements, and they weren’t asked directly about it. They therefore are not “acting exactly as they would” without a NSL.
    - garmaine 8y ago
      They’ve made similar statements in the past, e.g. regarding patriot act requests in 2013.
  - saagarjha 8y ago
    How exactly do canaries work, then? Isn't the point there that you have a canary that you remove later?
    - 8y ago
stephenr 8y ago
Do you have a reference for this? There is apparently case law from the 1970s' where SCOTUS ruled that the government cannot compel someone to speak against their wishes.
Bluestrike2 8y ago
A NSL can compel the recipient's silence in the form of a gag order, but the government cannot compel speech outside of very particular circumstances, such as consumer warning labels, that don't include verifiably false statements.[0] Thus the concept of warrant canaries, though they haven't been challenged in court.[1] There are other articles on both out there, but the EFF links are decent starting points if you're interested in reading further. Making an explicitly false statement to preserve the silence about an NSL or its subject matter goes well beyond a gag order. The gag order compels your silence; it doesn't compel you to become an active participant in maintaining that silence beyond not acting to break it, let alone persuading people to believe any explanations or stories to explain it or shield the investigation the letter is a part of. But there's another issue beyond the constitutional problems with trying to order Apple or its officers to make verifiably false statements about the existence of Chinese spy chips: any statement about said spy chips would constitute a material fact to shareholders. And it'd be a a really big one with an effect potentially measured in billions of dollars of market value, multiplied by the fact that Apple lied and destroyed every iota of credibility on privacy issues they've developed over the years. Making that statement--even if ordered to do so by an NSL--would be a blatant breach of the their fiduciary duty to shareholders and SEC regulations. Even if compelled to do so, Apple (or its officers) literally can't make that false statement. They'd have no choice but to fight an NSL that orders them to make false statements, and even if they lost, they'd limit themselves to "no comment." So while they might be under a gag order on a given subject due to an NSL, if they're commenting about it, we can reasonably accept those comments as true. Or, at minimum, that they are their own words rather than the government's. As a hypothetical, it's plausible that they could be lying about the chips; but if so, it would be because of their own deliberate decision to do. Not that that's very likely, of course. 0. https://www.eff.org/deeplinks/2014/04/warrant-canary-faq https://www.eff.org/deeplinks/2014/04/warrant-canary-faq 1. https://www.eff.org/issues/national-security-letters https://www.eff.org/issues/national-security-letters

> Apple's official statement clearly said, they're not under any form of NSL or gag order. Except that a NSL can (legally) command the recipient to lie about it.

roblabla 8y ago

An NSL cannot force you to lie. You can say "no comment", and that's how it's always been handled. Why would they vehemently deny an NSL (with all the risks involved) when "no comment" would suffice ?

lovich 8y ago
Is that still true though? The NSL already compel speech in that they limit what you can say. We already have secret courts making decisions that we find out about years later. At this point the major wall has been breached in terms of rights, altering speech for national security, and we can no longer trust anything. If the secret courts decided they were going to compel active speech instead of compelling negative speech, what mechanism would let us know of the change? I don't think there is any
- lawnchair_larry 8y ago
  That is not what compel speech means.
- garmaine 8y ago
  Most people in this thread have zero experience with national security issues, and the ACLU/EFF opinions are more what those organizations feel should be the constitutional interpretation, not what actual circumstance is. You certainly can be compelled to say certain things to keep classified information secret, at risk of federal prison or worse, and this is the same law that is being abused for NSLs.
  - mattzito 8y ago
    I’ve seen you make this claim several times in this thread, but haven’t provided any evidence. Can you provide a source that says that the federal government can compel false statements as part of national security demands?
    - scrps 8y ago
      I was curious about this as well and did a bit of searching around (I didn't dig that deeply and IANAL) and found this: https://www.yalelawjournal.org/forum/warrant-canaries-and-disclosure-by-design https://www.yalelawjournal.org/forum/warrant-canaries-and-di... Specifically Section IV, subsection C "Canaries and the First Amendment Status of Compelled Lies"
  - breatheoften 8y ago
    That sounds like a pretty nightmarish tactic ... Is there a way where the government could either purposefully disclose classified information (or retroactively classify it) so as to force certain individuals into making particular statements or denials via the threat that if they said otherwise they would be guilty of disclosing classified information ...?

vageli 8y ago

> Except that a NSL can (legally) command the recipient to lie about it. Do you have a source for this statement? As far as I'm aware, you can be compelled to remain silent but not compelled to give a false statement.

garmaine 8y ago
You can be compelled to act exactly as you would as if the NSL had not been issued, and indeed they seem to contain language to that effect. A reasonable response would be to adopt a policy of "no comment" and most do, but if you have previously responded to questions about NSLs in the negative, you would then be required to continue doing the same. Q: Have you received an NSL? A: No. Q: Now have you received an NSL? A: Still nope. (Government issues NSL) Q: What about now? A: No comment. ^ This would be a clear canary indication that an NSL has been issued, which is in directly contradiction of the terms of the secrecy requirements laid out in the NSL. The only reasonable response (aside from supporting the ACLU and EFF to end this nonsense) is to adopt the "no comment" policy early, which most do. However Apple has now broken that strategy, if they haven't already.
- stephenr 8y ago
  Apple made a statement, that they have are not under NSL/gag. They don’t routinely make these statements, and they weren’t asked directly about it. They therefore are not “acting exactly as they would” without a NSL.
  - garmaine 8y ago
    They’ve made similar statements in the past, e.g. regarding patriot act requests in 2013.
- saagarjha 8y ago
  How exactly do canaries work, then? Isn't the point there that you have a canary that you remove later?
  - 8y ago

stephenr 8y ago

Do you have a reference for this? There is apparently case law from the 1970s' where SCOTUS ruled that the government cannot compel someone to speak against their wishes.

Bluestrike2 8y ago

A NSL can compel the recipient's silence in the form of a gag order, but the government cannot compel speech outside of very particular circumstances, such as consumer warning labels, that don't include verifiably false statements.[0] Thus the concept of warrant canaries, though they haven't been challenged in court.[1] There are other articles on both out there, but the EFF links are decent starting points if you're interested in reading further. Making an explicitly false statement to preserve the silence about an NSL or its subject matter goes well beyond a gag order. The gag order compels your silence; it doesn't compel you to become an active participant in maintaining that silence beyond not acting to break it, let alone persuading people to believe any explanations or stories to explain it or shield the investigation the letter is a part of. But there's another issue beyond the constitutional problems with trying to order Apple or its officers to make verifiably false statements about the existence of Chinese spy chips: any statement about said spy chips would constitute a material fact to shareholders. And it'd be a a really big one with an effect potentially measured in billions of dollars of market value, multiplied by the fact that Apple lied and destroyed every iota of credibility on privacy issues they've developed over the years. Making that statement--even if ordered to do so by an NSL--would be a blatant breach of the their fiduciary duty to shareholders and SEC regulations. Even if compelled to do so, Apple (or its officers) literally can't make that false statement. They'd have no choice but to fight an NSL that orders them to make false statements, and even if they lost, they'd limit themselves to "no comment." So while they might be under a gag order on a given subject due to an NSL, if they're commenting about it, we can reasonably accept those comments as true. Or, at minimum, that they are their own words rather than the government's. As a hypothetical, it's plausible that they could be lying about the chips; but if so, it would be because of their own deliberate decision to do. Not that that's very likely, of course. 0. https://www.eff.org/deeplinks/2014/04/warrant-canary-faq https://www.eff.org/deeplinks/2014/04/warrant-canary-faq 1. https://www.eff.org/issues/national-security-letters https://www.eff.org/issues/national-security-letters