5 ms·

I would argue that stopping to publish these statements is equivalent to announcing that some warrant has been served. So if the latter is a criminal offense, w

I would argue that stopping to publish these statements is equivalent to announcing that some warrant has been served. So if the latter is a criminal offense, why should the former be legal?

d_watt 4y ago
Because compelling someone to actively do something is fundamentally different from restricting them from a future action, in the eyes of the law.
- bitwize 4y ago
  What the Constitution says is not how the system actually works. The magic phrase "national security" means they can compel you to do as they please, and find you guilty without due process if you don't. Hell, the FBI is one of the largest CSAM distribution rings in the world, and they can simply "discover" CSAM on your computer if you don't knuckle under. Then you will be legit found guilty and morally discredited for the rest of your life. If the Feds really want to nail you -- to teach you a lesson and/or make an example out of you -- you're nailed.
  - orangepurple 4y ago
    They CP'd Paddock of Vegas
    - mcculley 4y ago
      You think they planted evidence? What makes you believe that?
      - pc86 4y ago
        It's convenient for their particular brand of conspiracy theory.
        JasonFruit 4y ago
        That's a lot of assumption. Why not let them answer for themselves?
  - celtoid 4y ago
    "...the state system which has emerged in the United States is a constitutional deformation which menaces the freedom and well being of its citizenry, and Which poses a danger to world civilization. What is hanging in the balance in the last twenty-five years of this century is whether the people, scholars, lawyers and judges, and members of the government, can so organize their understanding and their political actions as to avert fascism or Bonapartism, a debilitating arms race that could end in the kind of horror from which there will be no redemption, and a decaying economic system which impoverishes Americans as well as people elsewhere." "Democracy Versus The National Security State" by Marcus Raskin, 1976 https://scholarship.law.duke.edu/lcp/vol40/iss3/7/ https://scholarship.law.duke.edu/lcp/vol40/iss3/7/
  - JumpCrisscross 4y ago
    > they can compel you to do as they please, and find you guilty without due process if you don't The Supreme Court has repeatedly ruled on compelled speech [1], most colourfully on the pledge of allegiance [2]. It’s the theory Apple ran with in the San Bernardino case to avoid creating a decryption key [3]. A theory that was so successful the FBI pulled their case rather than risk a precedent for encryption. [1] https://en.m.wikipedia.org/wiki/Compelled_speech https://en.m.wikipedia.org/wiki/Compelled_speech [2] https://en.m.wikipedia.org/wiki/West_Virginia_State_Board_of_Education_v._Barnette https://en.m.wikipedia.org/wiki/West_Virginia_State_Board_of... [3] https://en.m.wikipedia.org/wiki/FBI–Apple_encryption_dispute https://en.m.wikipedia.org/wiki/FBI–Apple_encryption_dispute
  - krplan 4y ago
    [flagged]
    - kasey_junk 4y ago
      Assange is being held without bail during pre-trial motions in the UK because he jumped bail the last time he had bail. If they are making an example of him it’s “if you jump bail you won’t get it again”.
  - throwawaylinux 4y ago
    This is true. Prominent conspiracy theorist Chuck Schumer warned people about this when he blew the whistle about the intelligence agencies having six ways from Sunday to get back at anybody who crosses them, even the president.
jffry 4y ago
You can argue that, but other people argue the other side. To my knowledge it hasn't been firmly tested in a US court yet. There are supreme court precedents finding that the first amendment prohibits the government from compelling speech, which is the legal theory for why warrant canaries are not equivalent to directly disclosing the NSL's existence: https://en.wikipedia.org/wiki/Warrant_canary https://en.wikipedia.org/wiki/Warrant_canary
lifeisstillgood 4y ago
It's going to be a very difficult legal debate at some point in the future. And I bet there are a lot of constitutional lawyers salivating over it :-) If the government can compel you to hand over some information, well that's government. They can also injunct you not to tell people. But, can they compel you to lie, publically ? Can they compel you to not publish such canaries - just in case they want to compel you later on? And frankly, does it matter - is such a canary really just a form of social performance? If I don't want the US government to know something about me, I should stay the hell away from modern life, internet and so forth.
rgbrenner 4y ago
Here's an article discussing it more in depth: https://www.yalelawjournal.org/forum/warrant-canaries-and-disclosure-by-design https://www.yalelawjournal.org/forum/warrant-canaries-and-di... But the issue hasnt been settled in the courts. Twitter v Barr (2014) attempted to settle the issue, but the case was dismissed in 2020. Edit: https://www.courtlistener.com/docket/4181259/twitter-inc-v-barr/ https://www.courtlistener.com/docket/4181259/twitter-inc-v-b...
buran77 4y ago
The law can compel you to not disclose that you were server a warrant but *in theory it cannot compel you to explicitly make a statement, particularly if it's false I presume. *I say "in theory" because I understand that this was never tested in court and some big name law professors did not agree that this would stand up in a court of law. A judge would look at the spirit of the law that bans the warrant disclosure and consider that the entire setup of the warrant canary is aimed at breaking it. I tend to agree with this interpretation because any reasonable person would consider the whole design is aimed at breaking that law.
- JumpCrisscross 4y ago
  > judge would look at the spirit of the law that bans the warrant disclosure and consider that the entire setup of the warrant canary is aimed at breaking it The point of gag orders is to keep a criminal from destroying evidence while an investigation is underway. Having an individual warrant canary for every customer would defeat this purpose. A general canary doesn’t appear to.
- feanaro 4y ago
  The point is that the law is unjust, so why would people observe it? How does it serve the people to not be able to say you were compelled to share their personal information with what amounts to a bully?
- brookst 4y ago
  Courts are not supposed to look at the spirit of laws, but the letter. It would be a sad day for US justice if a judge ruled that every action was within the law but, because a reasonable person would conclude that the actions in aggregate were intended to circumvent a law, the defendant is guilty.
  - ISL 4y ago
    How should a judge intrepret a typo?
  - fmajid 4y ago
    (English) Common Law gives judges a wide latitude to decide, and in effect make law, as was the case with Roe v. Wade, in a way (Roman) Civil Law jurisdiction don't allow. Sometimes this goes in a liberal direction, sometimes the other way. I would not assume anything about warrant canaries, and would expect the FBI et al to get the judge who gave them a gag order to also issue a warrant canary falsification order at the same time. Most organizations would not have the werewithal to resist, or the fortitude of a Judy Miller or James Risen and their willingness to go to jail rather than reveal their sources (yes, I know Judy Miller is a warmongering sorry excuse for a journalist, but her stand in this respect is admirable).
sschueller 4y ago
They have locations outside the US for example Zürich Switzerland. If they are served a secret warrant for data in that location I would want to know and I would legally have the right to know under Swiss jurisdiction.
- sokoloff 4y ago
  What’s the Swiss legal theory under which you have the right to know that someone else was served with a warrant?
  - sschueller 4y ago
    If my data is being accessed I have the right to know. There are no secret warrents in Switzerland. This is the whole contention with Microsoft Office 365 being hosted in the EU and the CLOUD act.
detrites 4y ago
A slight problem would be as soon it looked like such a legal precedent were about to be set, anyone publishing the statements would therefore be incentivised to cease publishing them while they still could legally. More succinctly, the legal precedent would compel people to "break the law". I'd argue such a conflicted legal outcome could only be resultant from unsound base principles.
jmbwell 4y ago
The former is legal, the thinking goes, because the government cannot force you to continue posting a warrant canary. Nobody can say, “you have this on your web site saying you have never received a warrant; here’s a warrant, and by the way, you must also continue saying (now lying) that you have never received a warrant.” The government can tell you to /stop/ posting a daily or weekly notice. It can say “here’s a warrant; you may not tell anyone you have received this.” In that case, you would be lying to say you had /not/ received it, and discussing whether you have received it or not received it at all can be prohibited. In which case, you would be obligated to remove or cease updating any statements related to a warrant.
ndsipa_pomu 4y ago
Which law would apply to someone that hasn't been served with a warrant and state that they haven't been served with a warrant? Until they are possibly served with a warrant, the publishing of such statements would be legal and protected under free speech (I guess, I'm not in the U.S.), and when served with a warrant, surely removing any statements about warrants would be a wise move to avoid prosecution for releasing information about it.
deleted 4y ago
[deleted]
deleted 4y ago
[deleted]

I would argue that stopping to publish these statements is equivalent to announcing that some warrant has been served. So if the latter is a criminal offense, why should the former be legal?

d_watt 4y ago

Because compelling someone to actively do something is fundamentally different from restricting them from a future action, in the eyes of the law.

bitwize 4y ago
What the Constitution says is not how the system actually works. The magic phrase "national security" means they can compel you to do as they please, and find you guilty without due process if you don't. Hell, the FBI is one of the largest CSAM distribution rings in the world, and they can simply "discover" CSAM on your computer if you don't knuckle under. Then you will be legit found guilty and morally discredited for the rest of your life. If the Feds really want to nail you -- to teach you a lesson and/or make an example out of you -- you're nailed.
- orangepurple 4y ago
  They CP'd Paddock of Vegas
  - mcculley 4y ago
    You think they planted evidence? What makes you believe that?
    - pc86 4y ago
      It's convenient for their particular brand of conspiracy theory.
      - JasonFruit 4y ago
        That's a lot of assumption. Why not let them answer for themselves?
- celtoid 4y ago
  "...the state system which has emerged in the United States is a constitutional deformation which menaces the freedom and well being of its citizenry, and Which poses a danger to world civilization. What is hanging in the balance in the last twenty-five years of this century is whether the people, scholars, lawyers and judges, and members of the government, can so organize their understanding and their political actions as to avert fascism or Bonapartism, a debilitating arms race that could end in the kind of horror from which there will be no redemption, and a decaying economic system which impoverishes Americans as well as people elsewhere." "Democracy Versus The National Security State" by Marcus Raskin, 1976 https://scholarship.law.duke.edu/lcp/vol40/iss3/7/ https://scholarship.law.duke.edu/lcp/vol40/iss3/7/
- JumpCrisscross 4y ago
  > they can compel you to do as they please, and find you guilty without due process if you don't The Supreme Court has repeatedly ruled on compelled speech [1], most colourfully on the pledge of allegiance [2]. It’s the theory Apple ran with in the San Bernardino case to avoid creating a decryption key [3]. A theory that was so successful the FBI pulled their case rather than risk a precedent for encryption. [1] https://en.m.wikipedia.org/wiki/Compelled_speech https://en.m.wikipedia.org/wiki/Compelled_speech [2] https://en.m.wikipedia.org/wiki/West_Virginia_State_Board_of_Education_v._Barnette https://en.m.wikipedia.org/wiki/West_Virginia_State_Board_of... [3] https://en.m.wikipedia.org/wiki/FBI–Apple_encryption_dispute https://en.m.wikipedia.org/wiki/FBI–Apple_encryption_dispute
- krplan 4y ago
  [flagged]
  - kasey_junk 4y ago
    Assange is being held without bail during pre-trial motions in the UK because he jumped bail the last time he had bail. If they are making an example of him it’s “if you jump bail you won’t get it again”.
- throwawaylinux 4y ago
  This is true. Prominent conspiracy theorist Chuck Schumer warned people about this when he blew the whistle about the intelligence agencies having six ways from Sunday to get back at anybody who crosses them, even the president.

jffry 4y ago

You can argue that, but other people argue the other side. To my knowledge it hasn't been firmly tested in a US court yet. There are supreme court precedents finding that the first amendment prohibits the government from compelling speech, which is the legal theory for why warrant canaries are not equivalent to directly disclosing the NSL's existence: https://en.wikipedia.org/wiki/Warrant_canary https://en.wikipedia.org/wiki/Warrant_canary

lifeisstillgood 4y ago

It's going to be a very difficult legal debate at some point in the future. And I bet there are a lot of constitutional lawyers salivating over it :-) If the government can compel you to hand over some information, well that's government. They can also injunct you not to tell people. But, can they compel you to lie, publically ? Can they compel you to not publish such canaries - just in case they want to compel you later on? And frankly, does it matter - is such a canary really just a form of social performance? If I don't want the US government to know something about me, I should stay the hell away from modern life, internet and so forth.

rgbrenner 4y ago

Here's an article discussing it more in depth: https://www.yalelawjournal.org/forum/warrant-canaries-and-disclosure-by-design https://www.yalelawjournal.org/forum/warrant-canaries-and-di... But the issue hasnt been settled in the courts. Twitter v Barr (2014) attempted to settle the issue, but the case was dismissed in 2020. Edit: https://www.courtlistener.com/docket/4181259/twitter-inc-v-barr/ https://www.courtlistener.com/docket/4181259/twitter-inc-v-b...

buran77 4y ago

The law can compel you to not disclose that you were server a warrant but *in theory it cannot compel you to explicitly make a statement, particularly if it's false I presume. *I say "in theory" because I understand that this was never tested in court and some big name law professors did not agree that this would stand up in a court of law. A judge would look at the spirit of the law that bans the warrant disclosure and consider that the entire setup of the warrant canary is aimed at breaking it. I tend to agree with this interpretation because any reasonable person would consider the whole design is aimed at breaking that law.

JumpCrisscross 4y ago
> judge would look at the spirit of the law that bans the warrant disclosure and consider that the entire setup of the warrant canary is aimed at breaking it The point of gag orders is to keep a criminal from destroying evidence while an investigation is underway. Having an individual warrant canary for every customer would defeat this purpose. A general canary doesn’t appear to.
feanaro 4y ago
The point is that the law is unjust, so why would people observe it? How does it serve the people to not be able to say you were compelled to share their personal information with what amounts to a bully?
brookst 4y ago
Courts are not supposed to look at the spirit of laws, but the letter. It would be a sad day for US justice if a judge ruled that every action was within the law but, because a reasonable person would conclude that the actions in aggregate were intended to circumvent a law, the defendant is guilty.
- ISL 4y ago
  How should a judge intrepret a typo?
- fmajid 4y ago
  (English) Common Law gives judges a wide latitude to decide, and in effect make law, as was the case with Roe v. Wade, in a way (Roman) Civil Law jurisdiction don't allow. Sometimes this goes in a liberal direction, sometimes the other way. I would not assume anything about warrant canaries, and would expect the FBI et al to get the judge who gave them a gag order to also issue a warrant canary falsification order at the same time. Most organizations would not have the werewithal to resist, or the fortitude of a Judy Miller or James Risen and their willingness to go to jail rather than reveal their sources (yes, I know Judy Miller is a warmongering sorry excuse for a journalist, but her stand in this respect is admirable).

sschueller 4y ago

They have locations outside the US for example Zürich Switzerland. If they are served a secret warrant for data in that location I would want to know and I would legally have the right to know under Swiss jurisdiction.

sokoloff 4y ago
What’s the Swiss legal theory under which you have the right to know that someone else was served with a warrant?
- sschueller 4y ago
  If my data is being accessed I have the right to know. There are no secret warrents in Switzerland. This is the whole contention with Microsoft Office 365 being hosted in the EU and the CLOUD act.

detrites 4y ago

A slight problem would be as soon it looked like such a legal precedent were about to be set, anyone publishing the statements would therefore be incentivised to cease publishing them while they still could legally. More succinctly, the legal precedent would compel people to "break the law". I'd argue such a conflicted legal outcome could only be resultant from unsound base principles.

jmbwell 4y ago

The former is legal, the thinking goes, because the government cannot force you to continue posting a warrant canary. Nobody can say, “you have this on your web site saying you have never received a warrant; here’s a warrant, and by the way, you must also continue saying (now lying) that you have never received a warrant.” The government can tell you to /stop/ posting a daily or weekly notice. It can say “here’s a warrant; you may not tell anyone you have received this.” In that case, you would be lying to say you had /not/ received it, and discussing whether you have received it or not received it at all can be prohibited. In which case, you would be obligated to remove or cease updating any statements related to a warrant.

ndsipa_pomu 4y ago

Which law would apply to someone that hasn't been served with a warrant and state that they haven't been served with a warrant? Until they are possibly served with a warrant, the publishing of such statements would be legal and protected under free speech (I guess, I'm not in the U.S.), and when served with a warrant, surely removing any statements about warrants would be a wise move to avoid prosecution for releasing information about it.

deleted 4y ago

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deleted 4y ago

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