8 ms·

So the law, presumably, says 'you can't tell people you've received a warrant' (or a national security letters?)? Surely this convoluted scheme is still tellin

• aliqot 4y ago
  Laws never said anything about what you stop saying, in this context.
  • smcl 4y ago
    I think courts often encounter people who have clever interpretations of laws, but who then get a bit of a rude awakening when their "Air Bud" style workaround gets slapped down when it meets a surly judge who has no time for their shit. Obviously not a lawyer, so I don't know whether this is one of these, whether it's something yet to be tested in court or whether Warrant Canaries are already accepted as valid.
    • aliqot 4y ago
      You must be referencing a court case where a modern warrant canary has ended with the perp in jail. Who might that be? You prefaced with "I think", but spoke with quite steadfast certainty, surely this piqued your interest for a reason.
      • smcl 4y ago
        No, nothing specifically related to Warrant Canaries but some law podcasts I listened to - ALAB and Mic Dicta for example - have referenced this phenomenon a few times. It's usually a tech bro or sovereign citizen with a novel interpretation of a law that ends up failing when they eventually have to try to argue their case it in court.
        • brookst 4y ago
          Just because some legal strategies are batshit crazy sovcit nonsense doesn’t mean all legal strategies are. See: Apple vs FBI in San Bernardino.
          • smcl 4y ago
            True, and it's been elaborated elsewhere that these have already been tested in the supreme court. But you have to admit that without that precedent, it does seem a little bit cheeky - "oh the law says I can't do X, well it doesn't say I can't simply not do inverse(X)" :)
            • brookst 4y ago
              For a funny / not funny example, see the attempts to ban analogs of illegal drugs. The whole research chemical thing is a result of the need to legislate exactly what’s illegal.
          • jeltz 4y ago
            Sure, but warrant canaries sound like sovereign citizen stuff.
            • mcbits 4y ago
              Supreme Court decisions can sound like sovcit stuff when they reference English common law, the Magna Carta, etc. Warrant canaries are just intended to exploit a technicality. There are a lot of technicalities in law that authoritarians don't like.
          • tptacek 4y ago
            It's true, warrant canaries are not as implausible as sovcit arguments.
    • pbhjpbhj 4y ago
      Yes, I've seen this (in UK, but can't think off-hand of an example) where the judge says "yeah, no" to someone trying to be clever.
      • pc86 4y ago
        "I've seen this in a completely different jurisdiction but don't remember even a single specific" is not a particularly compelling counterargument.
        • bombcar 4y ago
          Especially since the UK has way more of a “legal precedent” style of law than the US constitutional system.
          • hgsgm 4y ago
            You mean "common law"? US Constitutional law is deeply based on "legal precedent".
        • deleted 4y ago
          [deleted]
        • smcl 4y ago
          I don't think this thread had the tone of an argument at all. If there were two people seriously butting heads going back and forth on something, yeah sure. But pulling a [Citation Needed] on some people who aren't experts but want to have a sincere and pretty civil discussion feels a bit much.
    • Tuna-Fish 4y ago
      The is substantial precedent that the US constitution prevents the government from compelling speech, litigated all they way to supreme court. This isn't some sovcit-level workaround, there is actual legal theory behind it. It is important to note that the more "low-effort" style of warrant canary, or simply posting a static page that says that you have not been served a warrant, is probably not safe. Taking the page down is possibly an action you can be legally prevented from doing. However, that's not what rsync.net is doing. They are specifically posting a new one every week, because no court or authority can compel them to post one if they don't want to under US law.
      • deleted 4y ago
        [deleted]
      • SAI_Peregrinus 4y ago
        Then why does every food product have a "nutrition facts" label, mandated by the FDA, if said mandate is unconstitutional? Either some compelled speech is constitutional, or Nestle hasn't bothered to litgate it (strains credibility), or all the food manufacturers think that American consumers care enough about having the nutrition facts that they'd have a competitive disadvantage if they removed them (even less credible). Edit: My point is that "compelled speech" isn't the issue, it's "compelled false speech" vs "compelled silence", either of which infringes on the right to free speech in some way.
        • tptacek 4y ago
          Further, if this actually gets litigated, it seems pretty likely that the DOJ will argue that the government isn't compelling "false" speech, so much as the canary's owners deliberately created a situation where compliance with a lawful compulsion to silence would require them to lie; that they more or less "banked" a lie, and then tried to pin that on the government when it was time to make the withdrawal. (That's not to say this argument, or any canary argument, would avail; who the hell knows, should be our watchwords in this matter.)
        • thecrash 4y ago
          > why does every food product have a "nutrition facts" label, mandated by the FDA The FDA can't compel you to say anything you don't want to. But they can refuse to let you sell your product. The right to sell food isn't as strongly protected as the right to political expression.
    • account-5 4y ago
      I have to agree with you. Freeman of the land come to mind. I think the danger here is the interpretation of the prohibition on telling people you've been served with a secret warrant. Whilst you seemingly can't force someone to do something the fact that not doing that thing is effectively telling people you've been served a warrant is grounds at least to take you to court. I can only imagine this canary process being manual, if it were automated I'm unsure it could be considered speech (obvs: IANAL). Until tested in court it's up in the area.
      • aliqot 4y ago
        Comparing warrant canaries to sovereign citizens is disrespect almost to the degree of caricature.
        • account-5 4y ago
          I'm not comparing them, in that paragraph I'm commenting on the parents comment about people being slapped down by surly judges. That's why is in the first paragraph on its own.
        • smcl 4y ago
          I think you're taking non-US[0], non-lawyers speculating about US law a little bit too seriously. I mean it could be argued that we shouldn't even be commenting if we don't know, but where's the fun in that? It's Hacker News, not Lawyer News :) [0] - or at least I'm non-US
    • hooverd 4y ago
      Unfortunately surly judges also do things like impose a trial tax for daring not to take a plea deal. The legal system gets to play Calvinball.
    • _Algernon_ 4y ago
      If you force somebody (who's not even the defendent, just a witness in the case) to (cryptographially) sign a message of your own choosing, why not just take the shortcut of forcing the defendant to sign whatever confession you want them to? Much easier, quicker and cheaper than these fancy workarounds.
  • deleted 4y ago
    [deleted]
• jffry 4y ago
  You are correct that it is a convoluted scheme, but the goal of warrant canary users is to deliberately create a situation where their first amendment rights would be infringed by attempts to vigorously enforce the laws around NSL gag orders. What isn't firmly tested in court is this specific application of the idea that the first amendment protects against compelled speech, although there have been other similar cases (see the Wiki article [1]) [1] https://en.wikipedia.org/wiki/Warrant_canary https://en.wikipedia.org/wiki/Warrant_canary
  • fmajid 4y ago
    There's plenty of compelled speech in a commercial context. Just one example: look at your bottle of milk. It probably says "made with milk from cowsnot treated with rBST hormone", but the FDA also compels them to say effectively "not that there is anything wrong with rBST".
    • Red_Leaves_Flyy 4y ago
      I’d love to read a qualified and accomplished lawyers take on the pedantic differences between your example and the subject at hand.
    • devman0 4y ago
      There is an argument that compelled factual speech (such as disclosures, warnings, safety, ingredient information, "truth in lending", etc) is different than compelling someone to say something that isn't true.
    • lotsofpulp 4y ago
      > but the FDA also compels them to say effectively "not that there is anything wrong with rBST". Source? Edit, found this. Wonder why this reasoning is not used for false implications in all the other labeling for supplements, vitamins, herbal, and organic food. Even for milk, there is “A2” milk sold next to regular milk implying that A2 is somehow more nutritious, but it is not required to say “A1 milk has not been shown to be any worse than A2”. https://www.govinfo.gov/content/pkg/FR-1994-02-10/html/94-3214.htm https://www.govinfo.gov/content/pkg/FR-1994-02-10/html/94-32... > Because of the presence of natural bST in milk, no milk is ``bST-free,'' and a ``bST-free'' labeling statement would be false. Also, FDA is concerned that the term ``rbST free'' may imply a compositional difference between milk from treated and untreated cows rather than a difference in the way the milk is produced. Instead, the concept would better be formulated as ``from cows not treated with rbST'' or in other similar ways. However, even such a statement, which asserts that rbST has not been used in the production of the subject milk, has the potential to be misunderstood by consumers. Without proper context, such statements could be misleading. Such unqualified statements may imply that milk from untreated cows is safer or of higher quality than milk from treated cows. Such an implication would be false and misleading. >FDA believes such misleading implications could best be avoided by the use of accompanying information that puts the statement in a proper context. Proper context could be achieved in a number of different ways. For example, accompanying the statement ``from cows not treated with rbST'' with the statement that ``No significant difference has been shown between milk derived from rbST-treated and non-rbST-treated cows'' would put the claim in proper context. Proper context could also be achieved by conveying the firm's reasons (other than safety or quality) for choosing not to use milk from cows treated with rbST, as long as the label is truthful and nonmisleading.
• coffeeblack 4y ago
  Good point. It always reminds me of the “crypto nerd” xkcd. https://xkcd.com/538/ https://xkcd.com/538/
• ndsipa_pomu 4y ago
  The only way that warrant canaries could be successfully outlawed would be to have laws that apply retroactively or possibly outlaw anyone from any discussion of warrants at any time (with the exception of officers of the law - would make their job difficult). The issue is that people post a warrant canary before they have any warrant served, so it'd be a strange situation of being legal before receiving a warrant and then suddenly transitioning to illegal. Maybe one way round it would be to make it illegal to change any procedures upon receiving a warrant so that they would be forced to continue posting warrant canaries that are then false.
  • tptacek 4y ago
    I don't know why you think this is the case, but I haven't read any analysis of canary legality that pivots on ex-post-facto laws. As I understand it, the question comes down to: a court order requiring a company to maintain its warrant canary will amount to compelled false speech (compelled speech happens already, compelled false speech is unique to this situation) and will as such be subject to the strict scrutiny standard. The case against warrant canaries: the gag order itself is already subject to strict scrutiny, and people who post warrant canaries have gone out of their way to put themselves in a situation where they will need to make false statements. The case for canaries: compelled false statements are more intrusive than a gag order and will receive, somehow, more scrutiny. It's not simple and it isn't resolved in law.
    • ndsipa_pomu 4y ago
      Well, I'm not any kind of legal expert and don't have any specific domain knowledge, but it just seems logical to me that it's perfectly legal to post a warrant canary before any warrants have been served. I was addressing the parent's comment about how warrant canaries should be illegal due to them being an attempt to get around the gag order, but doesn't that involve a gag order making a previously legal action into an illegal action and assumes knowledge that a gag order will be issued in the future?