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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 o

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?

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?