5 ms·

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 wo

by 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.
  - fmajid 4y ago
    Well, rBST is banned in the EU, non on health or safety but on animal welfare grounds, as cow udders are not made for that level of milk production and mechanical milking causes distress and injury (mastitis) to the cows. Also there is a difference between BST (bovine somatotropinnatural) and rBST (r stands for recombinant, the manufacturing process) the synthetic kind. The FDA's "concerns" are transparently based purely on the commercial interests of rBST producers like Monsanto and their customers'.
- panarky 4y ago
  I was struck by the negativity and fatalism of these comments, because in my memory we've discussed warrant canaries, and rsync's in particular, on HN many times over the years. In my memory the comments used to be more positive about both the effectiveness of canaries and about the sheer cleverness, ingenuity and spirit of fighting back against tyranny. I wondered what happened to the HN hive mind over the years, has it become more deferential to the authoritarian state, more accepting of the erosion of essential freedoms in exchange for ostensible safety, more dismissive of clever hacks? But then I read a thread from 13 years ago: https://news.ycombinator.com/item?id=702247 https://news.ycombinator.com/item?id=702247 While there's a noticeable positive sentiment, many of the skeptical comments of today could have been copied verbatim from July, 2009. So perhaps my memory is faulty.
  - TMWNN 4y ago
    >I wondered what happened to the HN hive mind over the years, has it become more deferential to the authoritarian state, more accepting of the erosion of essential freedoms in exchange for ostensible safety, more dismissive of clever hacks? >But then I read a thread from 13 years ago: https://news.ycombinator.com/item?id=702247 https://news.ycombinator.com/item?id=702247 >While there's a noticeable positive sentiment, many of the skeptical comments of today could have been copied verbatim from July, 2009. The difference is that in 2009 and now a Democrat is in the White House, so those who are convinced that "their side" can't do anything wrong are more willing to accept the authoritarian state. Look at the Warrant Canary Wikipedia page. Would Jessamyn West—associated so closely with Metafilter, a site that basically self-destructed because its hivemind became so self-reinforcing as to immediately shun anyone at any variance with it in a way that would make a Maoist struggle session conductor proud[1]—have created her sign for libraries if George W. Bush had not been president at the time? I doubt it. [1] https://news.ycombinator.com/item?id=32880651 https://news.ycombinator.com/item?id=32880651
  - fmajid 4y ago
    Since Snowden we've discovered just how lawless the government is, and what's worse, the spooks also got away scot-free with no consequences whatsoever for wanton violations of the Fourth Amendment. Saying that you shouldn't rely on legally untested warrant canaries as a sure-fire protection is not the same as agreeing with the executive branch's overreach abetted by a supine & craven Congress and a Judicial branch all too inclined to defer to the executive when spurious security justifications are trotted out.
hgsgm 4y ago
I don't understand this meme, which is absurdly popular. "Not updating a warrant canary" isn't the crime here. "Creating a warrant canary" is the crime, as it's an action whose only purpose is to violate a gag order.
- jefftk 4y ago
  Are you saying that you think it's currently illegal for rsync to be making this claim? Or that if they ever receive a gag order then their earlier action was retroactively illegal?
- ncallaway 4y ago
  > Creating a warrant canary" is the crime, as it's an action whose only purpose is to violate a gag order. There is no gag order. That's the point. Are you suggesting that any action that might violate any future order is a crime? If so, what do you base that on? If not, since there is no order before them, are you suggesting there is a specific statute that they are violating? If so, which one? If not, what would make this behavior criminal?
- merpnderp 4y ago
  If we have to pick between the first amendment and the courts helping to secretly enforce what are quite often shady laws, how should a people born to the Enlightenment choose?
- _fat_santa 4y ago
  > "Not updating a warrant canary" isn't the crime here. "Creating a warrant canary" is the crime, as it's an action whose only purpose is to violate a gag order. It walks a really fine line IMO. The way I see it is it works in two ways: * When you create one, you're not referencing a current gag order, but rather an imaginary future one. If creating one is a crime then doing just about anything (deleting an email or throwing away a letter) is also a crime because you can be destroying evidence in a potential future case or investigation not brought yet. * Once this warrant is issued, then your run into this case where any associated gag order is "one way". That is the government can order you not to disclose the warrant but they cannot compel you to lie and update the canary to reflect that you still have not gotten one yet. INAL.
tptacek 4y ago
The problem with this analysis is that First Amendment rights were already successfully infringed with the gag order that necessitated the canary, which itself has to meet the (maximal) strict scrutiny standard; in other words, there's no prima facie reason to believe that the legal argument defending the canary would fare any better than the legal argument objecting to the gag order. There are subtle and/or complicated reasons to believe the canary would work! I'm not here to make the case that canaries are invalid, only to establish that among legal experts, this is not a settled issue.
- elcritch 4y ago
  > The problem with this analysis is that First Amendment rights were already successfully infringed with the gag order that necessitated the canary, which itself has to meet the (maximal) strict scrutiny standard Has the supreme court actually ruled on the constitutionality of gag orders? Until then it's not completely settled that it's despite rulings in lower courts.
  - tptacek 4y ago
    These specifically, not that I know of. But gag orders in general? Nebraska Press v. Stuart, 3 part test: harm to the person being gagged, least restrictive means, and effectiveness of the order. That was in a press case, where the burden is much higher on the government than in these cases. Specific gag orders can and have failed in appeals! The problem with this argument as it pertains to warrant canaries is that defeating the gag order also defeats the purpose of the warrant canary. The question we're begging here is: if the gag order survives strict scrutiny, why won't the order to keep the canary up?
- philwelch 4y ago
  I think there may be a useful distinction here between prior restraint and compelled speech. If you post the statement "we have not received a gagged warrant since January 3 2023" and you receive a gagged warrant on January 4 2023, does the government really have the power to compel you to post the statement "we have not received a gagged warrant since January 5 2023" the next day? You don't even have to take down the January 3 canary; just leave it up long enough that people get suspicious that you haven't updated it.
devwastaken 4y ago
Feds always get what they want. You cannot afford to appeal to the supreme court, both financially and because non cooperation will cause you to receive retaliation. FBI has made it so an accusation of a crime can easily become a conspiracy, and a conspiracy felony is more prison time than cooperation for most non-violent crime. This is why big gov is fascism, they can do whatever they want. You'll never see the court documents.
- landemva 4y ago
  Even if you file USSC appeal via petition for certiorari, they get to choose if they want to hear it. The State SCs I have researched are the same; they choose if they want to hear the case. If they decide to not hear it, the cert is denied which doesn't mean the argument was decided. It just wasn't heard by the court. Judiciary Act of 1925 https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about https://www.uscourts.gov/about-federal-courts/educational-re...

by jffry 4y ago

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.
- fmajid 4y ago
  Well, rBST is banned in the EU, non on health or safety but on animal welfare grounds, as cow udders are not made for that level of milk production and mechanical milking causes distress and injury (mastitis) to the cows. Also there is a difference between BST (bovine somatotropinnatural) and rBST (r stands for recombinant, the manufacturing process) the synthetic kind. The FDA's "concerns" are transparently based purely on the commercial interests of rBST producers like Monsanto and their customers'.
panarky 4y ago
I was struck by the negativity and fatalism of these comments, because in my memory we've discussed warrant canaries, and rsync's in particular, on HN many times over the years. In my memory the comments used to be more positive about both the effectiveness of canaries and about the sheer cleverness, ingenuity and spirit of fighting back against tyranny. I wondered what happened to the HN hive mind over the years, has it become more deferential to the authoritarian state, more accepting of the erosion of essential freedoms in exchange for ostensible safety, more dismissive of clever hacks? But then I read a thread from 13 years ago: https://news.ycombinator.com/item?id=702247 https://news.ycombinator.com/item?id=702247 While there's a noticeable positive sentiment, many of the skeptical comments of today could have been copied verbatim from July, 2009. So perhaps my memory is faulty.
- TMWNN 4y ago
  >I wondered what happened to the HN hive mind over the years, has it become more deferential to the authoritarian state, more accepting of the erosion of essential freedoms in exchange for ostensible safety, more dismissive of clever hacks? >But then I read a thread from 13 years ago: https://news.ycombinator.com/item?id=702247 https://news.ycombinator.com/item?id=702247 >While there's a noticeable positive sentiment, many of the skeptical comments of today could have been copied verbatim from July, 2009. The difference is that in 2009 and now a Democrat is in the White House, so those who are convinced that "their side" can't do anything wrong are more willing to accept the authoritarian state. Look at the Warrant Canary Wikipedia page. Would Jessamyn West—associated so closely with Metafilter, a site that basically self-destructed because its hivemind became so self-reinforcing as to immediately shun anyone at any variance with it in a way that would make a Maoist struggle session conductor proud[1]—have created her sign for libraries if George W. Bush had not been president at the time? I doubt it. [1] https://news.ycombinator.com/item?id=32880651 https://news.ycombinator.com/item?id=32880651
- fmajid 4y ago
  Since Snowden we've discovered just how lawless the government is, and what's worse, the spooks also got away scot-free with no consequences whatsoever for wanton violations of the Fourth Amendment. Saying that you shouldn't rely on legally untested warrant canaries as a sure-fire protection is not the same as agreeing with the executive branch's overreach abetted by a supine & craven Congress and a Judicial branch all too inclined to defer to the executive when spurious security justifications are trotted out.

hgsgm 4y ago

I don't understand this meme, which is absurdly popular. "Not updating a warrant canary" isn't the crime here. "Creating a warrant canary" is the crime, as it's an action whose only purpose is to violate a gag order.

jefftk 4y ago
Are you saying that you think it's currently illegal for rsync to be making this claim? Or that if they ever receive a gag order then their earlier action was retroactively illegal?
ncallaway 4y ago
> Creating a warrant canary" is the crime, as it's an action whose only purpose is to violate a gag order. There is no gag order. That's the point. Are you suggesting that any action that might violate any future order is a crime? If so, what do you base that on? If not, since there is no order before them, are you suggesting there is a specific statute that they are violating? If so, which one? If not, what would make this behavior criminal?
merpnderp 4y ago
If we have to pick between the first amendment and the courts helping to secretly enforce what are quite often shady laws, how should a people born to the Enlightenment choose?
_fat_santa 4y ago
> "Not updating a warrant canary" isn't the crime here. "Creating a warrant canary" is the crime, as it's an action whose only purpose is to violate a gag order. It walks a really fine line IMO. The way I see it is it works in two ways: * When you create one, you're not referencing a current gag order, but rather an imaginary future one. If creating one is a crime then doing just about anything (deleting an email or throwing away a letter) is also a crime because you can be destroying evidence in a potential future case or investigation not brought yet. * Once this warrant is issued, then your run into this case where any associated gag order is "one way". That is the government can order you not to disclose the warrant but they cannot compel you to lie and update the canary to reflect that you still have not gotten one yet. INAL.

tptacek 4y ago

The problem with this analysis is that First Amendment rights were already successfully infringed with the gag order that necessitated the canary, which itself has to meet the (maximal) strict scrutiny standard; in other words, there's no prima facie reason to believe that the legal argument defending the canary would fare any better than the legal argument objecting to the gag order. There are subtle and/or complicated reasons to believe the canary would work! I'm not here to make the case that canaries are invalid, only to establish that among legal experts, this is not a settled issue.

elcritch 4y ago
> The problem with this analysis is that First Amendment rights were already successfully infringed with the gag order that necessitated the canary, which itself has to meet the (maximal) strict scrutiny standard Has the supreme court actually ruled on the constitutionality of gag orders? Until then it's not completely settled that it's despite rulings in lower courts.
- tptacek 4y ago
  These specifically, not that I know of. But gag orders in general? Nebraska Press v. Stuart, 3 part test: harm to the person being gagged, least restrictive means, and effectiveness of the order. That was in a press case, where the burden is much higher on the government than in these cases. Specific gag orders can and have failed in appeals! The problem with this argument as it pertains to warrant canaries is that defeating the gag order also defeats the purpose of the warrant canary. The question we're begging here is: if the gag order survives strict scrutiny, why won't the order to keep the canary up?
philwelch 4y ago
I think there may be a useful distinction here between prior restraint and compelled speech. If you post the statement "we have not received a gagged warrant since January 3 2023" and you receive a gagged warrant on January 4 2023, does the government really have the power to compel you to post the statement "we have not received a gagged warrant since January 5 2023" the next day? You don't even have to take down the January 3 canary; just leave it up long enough that people get suspicious that you haven't updated it.

devwastaken 4y ago

Feds always get what they want. You cannot afford to appeal to the supreme court, both financially and because non cooperation will cause you to receive retaliation. FBI has made it so an accusation of a crime can easily become a conspiracy, and a conspiracy felony is more prison time than cooperation for most non-violent crime. This is why big gov is fascism, they can do whatever they want. You'll never see the court documents.

landemva 4y ago
Even if you file USSC appeal via petition for certiorari, they get to choose if they want to hear it. The State SCs I have researched are the same; they choose if they want to hear the case. If they decide to not hear it, the cert is denied which doesn't mean the argument was decided. It just wasn't heard by the court. Judiciary Act of 1925 https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about https://www.uscourts.gov/about-federal-courts/educational-re...